LIBRARY OF CONGRESS 



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ECLECTIC SCHOOL BOOKS 


I'T —-- 

I ECLECTIC PRIMER, 

ECLECTIC PROGRESSIVE SPELLING BOOK, 

W ECLECTIC FIRST READER, 

|| ECLECTIC SECOND READER, 

! ■ ECLECTIC THIRD READER, 

I ECLECTIC FOURTH READER, 

!' RAY'S ECLECTIC ARITHMETIC, 
fen RAY’S LITTI.E ARITHMETIC, 
f 'RAY’S RULES AND TABLES, 

|i Miss BEECHER’S MORAL INSTRUCTOR, 

I MANSFIELD’S POLITICAL GRAMMAR., 
k SMITH’S PRODUCTIVE GRAMMAR, 
IpMASON’S YOUNG MINSTREL, a new Juvenile 
|ji! Music Book. 

h . The highest recommendation that can be paid this popular and 
[ii valuable Series of Schorol Books is in the fact that Three Hioidred 
jk Thousand Copies of them have been published during the short time 
I |j they have been before the public. They are fast becoming the Stand- 
}|i ard School Books of the South and West. A few Testimonials are 
|jJ|Subjoined. 

!i|‘ MANSFIELD’S POLITICAL GRAMMAR. 

[I ||, NEW EDITION. 

|j |r This valuable Work has been highly recommended in different parts 
|}jj[of the United Stales. The additions which have now been made 
}|j have materially enclianced its value, and will render it one of the 

t jjimost important and interesting Class Books that can be introduced 
jtjinto our Common Schools, High Schools and Colleges. The annexed 
;ti- notices will show in what estimation the work is held by distinguished 
IjiiTriends of education. 

jjij; Cincinnati, 5th November, 1838. 

||j};Messrs. Truman & Smith, 

wjl Gentlemen,— I am pleased to learn that you are about publishing 
|j!|:a new edition of Mr. Mansjield'^s Political Grammar. 
llil' A school book containing a brief historical sketch of the political 
•fli’irganization of the United States, and a correct delineation of the 










2 


ADVERTISEMENTS. 


theory and operatjon of the General and State Govemments, has long 
been desired to promote the well-being of society and perpetuate our 
free institutions. We cannot expect to cany into successful practice 
the fundamenlal principles embodied in our Constitutions, unless a 
knowledge of those principles is widely diffused among the people, 
and imparled in common education. Feeling much solicitude on the 
subject, i have examined “ The Political Grammar of the United 
States^"''’ by Edward D. Mansfield, with an eye to its adaptation to the 
desired end. I am happy to say, that the Grammar, as a text book of 
the elementary terms,definilions and principlesof our written Constitu¬ 
tions, is a w.ork of great merits and superior to any of the kind that has 
come under my observation. The introduction of this valuable work 
into common t/.w, and into common schools., cannot fail of good results 
in the diffusion of correct political instruction, tending to the preserva¬ 
tion of political liberty. 

I am, with great respect, 

Your humble servant, 

JOHN C. WRIGHT. 

Woodward College, Cincinnati, Oct. 2d, 1838. 

Without much sound political knowledge universally diffused, 
we as a nation must perish, just because the people are under God, 
the true, absolute sovereign, and will do as they choose. 

While therefore we rejoice to see our Colleges and Scliolastic Insti¬ 
tutions generally, introducing the Bible among their text books, and 
awakening to the necessity of more thorough Christian education, we- 
must also take courage in view of the increasing interest which is 
manifested in the study of the Constitution of the United States—the 
gieat Charter of American Liberty, and the great Code of American 
duty. Whatever lends to promote either of these objects—the Chris¬ 
tian knowledge, and the sound political knowledge of the people—will 
tend, under heaven’s blessing, just so far to save this happy republic, 
and spread the precious benefits of civil and religious freedom to the 
other nations of the earth. 

It is for these reusone wo oovHJally vooomnienvl “Tiik POLITICAL 
Gramimar of the United States, by Edward D. Mansfield, Esq,.” 
The work is comprehensive ; it covers the whole ground, while it leaves 
out no detail necessary to illustrate and establish the great principles 
of our government; and yet it is so moderate in point of size and ex¬ 
pense, as to be within the reach of all. It Ls simple and lucid in 
order. Every thing in it is well digested. The style throughout is 
clear and calm, though sufficiently diversified and animated, to make 
it always interesting. 

There are other books on the same subject of larger bulk and pre¬ 
tensions, but we know of none so admirably fitted for students of all 
classes, from the Common School up to the University. As a brief 
practical manual of sound political knowledge^ it ought to be in the 
hands of all the people. 

This, the third edition, has been enlarged by the addition of Ques¬ 
tions and Rules of Order. The value of the latter will be manifest 
from the fact that the very nature of all our institutions makes us em- 


ADVERTISEMENTS. 


3 


phalically a deliberative people; and from the fact that an opposer 
well-skilled in the methods of business in public bodies, may, though 
gieatly in the minority, with much ease emhari;ass, delay, and often 
at last defeat a measure. There is but one remedy, and that is to 
become conversant Oiirselves with the Rules of Order. Such knowl¬ 
edge is also essential as a safe-guard against many oppressive meas¬ 
ures of an unscrupulous majority. 

B. P. AYDELOTT, D. D., President of Woodward College. 
WILLIAM H. McGUFFEY, President of Cincinnati College. 

C. E. STOVV'E, Professor in Lane Seminary., Cincinnati.^ author 

of Jtieport on Prussian System of Education.^'' 

From the Muskingum County Lyceum. 

The following notice of the Political Grammar is from a Commit¬ 
tee of the Muskingum County Lyceum of Practical Teachers who re¬ 
ported on Books suitable to be used in Schools, Academies, &c. It 
is a very good analysis of the work, and coming to us unsolicited is 
the more valuable. 

45= School House is the proper place to lay the founda¬ 

tion of a correct knowledge of political science; and for this reason 
they have thought proper to call your attention to the subject, and 
to introduce to you the “ Political Grammar,” not alone as the hest^ 
but as the only work within their knowledge really deserving the name 
of a political class book. It is elementary and logical; and no book 
can more clearly give the outlines of any science, than it gives those 
of political law and action; and your committee feel confident that 
its general introdHclion into our schools and colleges will tend more 
to secure the future stability, glory and happiness of our country than 
almost any other event, and they cannot omit this opportunity of ex¬ 
pressing their thanks to its talented and distinguished author, for tne 
invaluable acquisition to the schoolmasters’ usefulness and itifluence, 
with which this volume furnishes them. 

The Political Grammar is but little known, and therefore your com¬ 
mittee subjoin a short outline of its contents. In the first chapter are 
laid down forty-eight definitions as the foundation of the author’s 
arguments, after which a history of the political changes of our coun¬ 
try from its settlement to the adoption of the present constitution, is 
given. The next chapter treats of the present constitution, clause 
by clause; giving the questions which have been raised, and the de¬ 
cisions and opinions made respecting them. The third chapter gives 
an account of tlie ratification of the constitution by the several states, 
to which is added Washington’s farewell address and the ordinance 
of 1787 for the government of the North Western Territory. In the 
fourth and fifth chapters we are presented with the leading features of 
state governments, and seventeen propositons, showing the fundament¬ 
al principles of both of the federal and state constitutions. And next 
come two chapters on the operations of the national and state gov- 
ornments. 


4 


ADVERTISEMENTS. 


MISS BEECHER’S MORAL. INSTRUCTOR. 

Much has of late been said on the importance q( moral education; 
and it is one of the most favorable signs of the times that a work of 
this kind has been so loudly called for by intelligent teachers. The 
testimonies to its worth are numerous and flattering. It is hoped itwill 
be used in every school in our country. The rapid sale of several edi¬ 
tions of the “Moral Instructor,” and Iheconstantlyincreasingdemand, 
have induced the publishers to put it in a permanent stereotype form. 

It is not easy to combine amusement with moral instruction, but 
Miss Beecher has been most happily successful. Her work is very 
interesting and amusing. It is regarded as a superior reading Book 
for schools, and may be used between the Second and Third Eclec¬ 
tic Readers, or in connexion with the Third Reader. The following 
commendations are from persons do not lend their names *0 
indifferent productions. '' ' 

From a report of the Common School Inspectors of Seneca., JS'eio 
x'ork, as published in the “ Geneva Courier. 

“ Among the Books recommended, we would call the attention of 
Teachers to Miss BEECiiiiii’s Moral Instructor, wliich supplies 
one of the. most pressing vrooi?, of our schools. Its object is to illustrate 
the close connexion between doing right, and being happy, between 
virtue and sound prosperity. J\fot one taint of sectarianism impairs its 
value. Clear, concise, and interesting it merits a cordial welcome 
and a warm approval. VV’^e hope, before another year is passed, it will 
be a manual in eoery District School In Seneca. 

LESTER JEWETT, ) 

W. R. POWERS, > Inspectors. 
FRANCIS DWIGHT, ) 

I have read several chapters of Miss Beecher’s work, entitled, 
“Moral Instructor for Schools,” with a pleasure which I have 
never failed to derive from any of the productions of the same pen. 
The style is clear and simple, and the illustrations apt and lively. 
There are very few children who would not consider it a pleasure lo 
read tlie work. 

JOHN T. BROOKE, Rector of Christ Church., Cincinnati. 

* * It carefully excludes every thing that would interfere with 

the distinguishing views of the various evangelical denominations 
while it secures, all that is es.^ential to a course of Moral Instruction. I 
think it will be found peculiarly useful lo the young, and may be intro¬ 
duced into all our schools with permanent advantage to pupils. Its def¬ 
initions are accurate and illustrations at once simple and conclusive. 
SAMUEL W. LYND, Pastor of the M'nth Street Baptist Church, 

* * # From the examination which I have been able lo make 

of this work, I can safely, and will cheerfully, recommend it to the 
public. It surely will be a valuable acquisition to the teacher and 
scholar, and also of great value in faipily government and instruction. 
With these views I can but wish it the greatest success. 

W. SEHOTs, Pastor of the J\Ieth, E. Churchy TVestem charge^ Cin. 



ADVERTISEMENTS. 


5 


Me GUFFEY’S ECliECTlO READERS. 

Pittsburgh, Nov. 27, 1837. 

To Vie Publishers of the Eclectic Series of School Books. 

Gentlemen.—We have examined copies of the “Eclectic Series 
of School Books,” and take pleasure in giving our testimony to their 
superior worth. During the period in which we have been engaged 
in the cause of education, a great variety of School Books have come 
under our observation; but we have never met with any works which 
so entirely meet our views as those comprised in the “Eclectic Series.” 

It would be impossible to point out all the merits, without entering 
too much into detail. The author seems to have well understood the 
nature and laws of mind, and has excelled in imparting clear and 
well-defined ideas to the minds of his pupils. The easy, lively and 
familiar style in which the subjects are presented, excites and fixes 
the attention. 'Phe proper gradation is observed in the selection and 
arrangement of the lessons—keeping pace v.?ith the ability on the part 
of the little learners to overco.ne new difficulties. A sad deficiency 
in this respect is the characteristic of most of the Juvenile Books now 
in use in our schools. The skilful iiiixturc of didactic and narrative 
pieces throughout, cannot fail to improve, especially when accom¬ 
panied by the remarks of an intelligent teacher. The Rules for cor¬ 
rect, easy, and agreeable reading prefixed to the lessons throughout 
the third and fourth Readers, and the Exercises in Spelling following 
the lessons in the three first readers, are well adapted to make thorough 
scholars. 

Finally—the fine moral effect the whole series is designed to pro¬ 
duce. This should be ranked among their most prominent merits. 
An education is not completed until there is united with the thorough 
discipline of the mind, a corresponding culture of the heart and affec¬ 
tions. The Eclectic Series unite in much greater perfection, this 
intellectual and moral education of the pupils, than any other series 
with which we are aeqainted, and is thus admirably adapted to make 
good children.^ as well as good scholars. 

J. II. SMITH, 

Principal of JVorth TVard Public School. 
WM. h. AVERY, 

Principal of the 5th fVard Public School, 
ISAAC WHITTIER, 

Principal of the East IVard Public School. 
WM. EICHBAUM, 

President oflst Ward Board of Directors^ Pittsbrurgh. 

Louisville, Ky., April 23, 1838. 

I consider it a misfortune that there is so great a variet> of school 
books—they all have many excellencies, but are deficient in proper 
arrangement and adaptation. I have no hesitancy in giving my most 
unqualified preference to the Eclectic Series, by President McGulTey 
and others, and shall introduce them into all the city schools as far 
as iny influence extends. SAJI’L DICKINSON, Superintendent 
of Public Schools for the City of Louisville, 


6 


ADVERTISEMENTS. 


ARITHMETICAL. COURSE. 

Ray’s Eclectic Arithmetic, on the inductive and analytic methods 
of instruction. Designed for common schools and academies. By 
' Joseph Ray, Professor of Mathematics in AVoodvvard College, and 
late Teacher of Arithmetic in that Institution. Stereotyped, 
Ray’s Little Arithmetic, containing intellectual exercises for 
young beginners, and designed to precede the “Eclectic Arith¬ 
metic.” Prepared expressly for the Eclectic Series. Stereotyped. 
Ray’s Tables and Rules in Arithmetic. For young children. 
Prepared for the Eclectic Series. Stereotyped. 

This system of Arithmetic is the result many years’ labor, which 
the author entered upon (in compliance with the earnest solicitation ot 
many friends of education,^ with a view of preparing a standard work, 
which would justify g-enera/ use in schools. The effort has proved 
completely successful. The ease and rapidity with which even very 
young pupils can learn arithmetic from these books ishighl}'^ gratify¬ 
ing. Tlie author is a practical, ingenious and successful teacher. 
He has instructed children and youth of all ages and grades; and well 
knows what a school book ought to be. 

Ray''s Eclectic ^^riUimetic. This is one of a valuable series of 
school books; the author treats the subject on the inductive method, 
explaining general principles by the analysis of particular questions; 
which, I think, is the only method of teaching the subject successfully; 
he has given numerous and well selected examples, which furnish 
ample room for the process of induciion and illustration. We think 
these examples had been better without the answers. We regard the 
work, however, as a decided improvement on most of those now in use, 
and hope it will receive, as it deserves^ extensive patronage. The 
U'ork loill be used in the Collegiate JnstituLt oj Louisville?"^ 

J. H. IIAHNEY, 

Professor of Mathematics in luouisville Collegiate Institute. 

CINCINNATI PUBLIC SCHOOLS,— At a Meeting of the 
Board of Trustees of the Public Free trchools, September 19, Ray'>s 
Eclectic Arithmetics were adopted as Class Books. At a meeting 
of the same Board, Oct. 24th, the “ Eclectic Readers'^'* were adopted 
as Class Books in the Department of Reading. 

ST. LOUIS PUBLIC SCHOOLS —The Eclectic Series of 
School Books have just been adopted as Class Books in the various 
departments of instruction in the Public Schools of St. Louis. 

PITT.SBURGII PUBLIC AND PRIVATE SCHOOLS. 

—The Eclectic Series are used in the Public and Private Schools of 
Pittsburgh, to a very great extent, and with the utmost success. 


ECLECTIC EDITION. 


THE 

POLITICAL GRAMMAR 

OF THE 

UNITED STATES; 

O R, A 

COMPLETE VIEW OF THE THEORY AND PRACTICE 

OF THE 

GENERAL AND STATE GOVERNMENTS, 

WITH THE RELATIONS BETW^EEN THEH. 

DEDICATED TO THE 

YOUNG MEN OF THE UNITED STATES. 

BY EDWARD D. MANSFIELD, 

PROFESSOR OF CONSTITUTIONAL LAW IN CINCINNATI COLLEGE. 


NEW EDITION-CONTAINING 

PARLIAMENTARY RULES, 

■; For THE GOVERNMENT OF PUBLIC ASSEMBLIES, 
arranged on the basis of Jefferson’s manual. 

ALSO, 

AN APPENDIX OF QUESTIONS. . 

FOR REVIEW, ADAPTING IT TO THE USE OF SCHOOLS. 

PREPARED FOR THE ECLECTIC SERIES. 


CINCINNATI : 

PUBLISHED BY TRUMAN & SMITH. 

1 839 . 






/ 



ADVERTISEMENT. 


I5irORTA?fCE OF RULES FOR THE GOVERNMENT OF PUB¬ 
LIC ASSEMBLIES, AND THE ADVANTAGE OP 
KNOWING THEM. 

Mr. Onslow, the ablest speaker of the British House 
of Commons, said, that it was a maxim he often heard re¬ 
peated, by old and experienced members, that nothing 
tended more to throw power into the hands of a major¬ 
ity, than a neglect of, or departure from the rules of 
proceeding;—that these forms operated, as a check, 
and control on the actions of the majority, and were 
in many instances a shelter, and protection to the 
minority, against the attempts of power. 

They constitute the only weapon, by which a mi¬ 
nority can defend themselves against the abuses of a 
majority: and, as every one may, at some time or 
other be in the minority;—every one may derive an 
adv^antage from knowing them. 

Whether these forms are all right, or not, is not of so 
much consequence, as that there should be a form, and 
a rule to go by, and thus preserve that order, decency 
and uniformity, necessary to a dignified public body. 

As every citizen must, in a free country, at some 
time, or other, mingle in the business of public assem¬ 
blies, and as no public assemblies can transact busi¬ 
ness without some rules of proceeding,—therefore, the 
knowledge of the usages, and rules of proceeding, as 
adopted, in the Legislative bodies of the U. States, 
must be useful to all intelligent citizens. 


[Entered, according to Act of Congress, in the year 1839, by 
Truman and Smith, in the Office of the Clerk of the 
Distr'et of Ohio.] 






PREFACE TO THE STEREOTYPE EDITION. 


Several Editions of this work have been received 
with favor, by the public. By those engaged in pro¬ 
fessional teaching especially, it has been better receiv- 
IT' ed, than the author anticipated. And, the demand is 
now such, that he has prepared, at the solicitation of 
teachers, this edition with Questions to facilitate the labor 
of the instructor. 

Within a very short time, a great change has come 
^ over the public mind, in respect to the relative import¬ 
ance of this study. 

Ten years since, teaching the fundamental principles 
of our Republican Institutions, was a thing scarcely, if 
at all, undertaken in our places of instruction; and the 
whole nation presented, what, to a philosopher, must 
have been the anomaly a people undertaking to carry 
out organic truths and precepts, embodied in a icriiten 
Constitution^ without even knowing what they were. 
Now the scene is different. Many of our colleges and 
academies have commenced teaching the Constitution, 
as it was written, and as it has been developed in the 
practice of half a century. The people demand such 
instruction; and it is hoped that,soon it will be introduc¬ 
ed into all schools of a high order, throughout the nation. 
To meet such a state of things, this work was written; 
and, if it has contributed in the slightest degree to in¬ 
crease intelligence, or excite patriotism, the author will 
rejoice in the consciousness, that he has given his mite 
to sustain the common cause of American liberty. 

Cincinnati, January fs^, 1839. 




TABLE OF CONTENTS 


BOOK I. 


Introduction. Definitions. section. 

Chapter I. Orifrin of the Constitution, . . 1-28 

Chapter II. Constitution of the United States, with 
the Decisions, Authoritative, of every Branch of 
the Government under it, .... 28-435 

Chapter III. Ratifications of the Consdtution, . 435-463 
Chapter IV. Synopsis of the Constitutions of the 

States,. 463-507 

Chapter V. Relations between the General and 
State Governments, stated in the form of Proposi- 
* tions, and regularly demonstrated, . . 507-538 


BOOK II. 

OPERATION OF THE NATIONAL AND STATE GOVERNMENTS. 

Chapter I. Practical operation of the Constitution sect. 
of the United States. 

1. Ofiice and duties of the Executive. 

2. Functions of, and mode of proceeding in, the 

Legislature. 

3. Functions and Jurisdiction of the Supreme 

Court, . . . . . . 538-704 

Chapter II. Practical Operation of the State Gov¬ 
ernments, . 704-725 

X 




INDEX 


A SECTION. 

Accounts,.238 

Adjournment, neither house can adjourn without the 

other’s consent,.89, 90 

Adjutant General, ....... 628 

Ambassador, what,.548 

Alien,. 147-149, 153 

Amendments, .... 411—413, 423—434 

Arms, right of the people to bear, .... 427 

AiTest, privilege from, .91, 93—99 

B 

Bill of Attainder,. 234, 249 

Bills of Credit, . . . . -. * . 245, 248. 


Bills for Revenue, where must originate, . 102, 104 

Bail, excessive,.431 

Bounty Land Office, 626 


C 

Capitation Tax, ....... 235 

Census, .'.. 47 

Charter Governments,. 3 

Charge d’ Affaires, . . . . . . 530 

Citizens of each state, privileges of, . . . 399, 400 

Citizenship, ....... 343—346 

Colonies, forms of government in, .... 2 

Coining money, right of,.244 

Compact, or Agreement with another state, or with a 
foreign state forbidden, . . . 272, 282 

Confederation of 1643,. 17, 18, 19 

Congress of 1754,.7 

“ “ 1765, .8 

“ “ 1775, . . . . ^ . . .10 

“ how composed,.35, 37 

“ time of assembling, . . . . 74, 75 

“ power of to lay and collect taxes, imposts, 

and excises, ..... Ill—118 

“ power of to borrow money, . . . 120 

** power of to regulate commerce, • 121-142 

xi 




Xll 


INDEX. 


SECT. 

Congress, power of to regulate intercourse with the In¬ 
dian tribes, .... 143-145 

“ power of to establish rules of naturalization, 146-153 
“ power of to pass bankrupt law's, . 154, 155 

“ power of to coin money, . . . 156, 157 

“ power of to fix the standard of w'eights and 

measures, ..... 156 

“ pow'er of to provide for the punishment of 

counterfeiting, . • . . 158 

“ pow'er of to establish post-offices and post¬ 
roads, . . . . 159-162 

“ power of to make internal improvements, 162-179 
“ power of to promote the progress of science 

and the useful arts, . . . 180 

“ power of to constitute tribunals inferior to 

the Supreme Court, . . 184, 185 

“ power of to punish piracy, . . 184-187 

“ pow'er of to declare war, and grant letters of 

marque, .... 190-192 

“ pow'er of to make rules concerning captures, 190, 193 
“ pow'er of to raise and support armies, . 194, 195 
“ pow'er of to provide for a navy, . .196 

“ power of to make rules for the government of 

tlie land and naval forces, . . 197 

“ pow'er of to provide for calling forth the mili¬ 
tia, . . . . . 199-207 

“ power to exercise exclusive jurisdiction, 210-212 
“ pow'er to make all law's necessary and proper 

to carr}'-these powers into execution, . 214 

Confederation, articles of, . . .11, 22—25 

Citizens of each state, privileges of, . . 399 

Constitution of the United States, at large,—page 165 

“ how'formed, . . . 14, 15 

■ - “ Articles of, . . ' . . 33 

v' “ the Supreme Law, • . . 415,417 

“ preamble of, . . . . 28-32 

“ construction of, . . . 458-462 

“ proceeds from the people, . . 515 

“ acts upon individual states, . . 516 

“ ‘how^ut into operation, . . 537, 538 

“ of New-York, what, . . 467-476 

“ “ “ compared w'ith U. States, 477-483 

Constitutions of the states, how they agree, , 496, 497 

“ “ “ how they differ, 498-606 


INDEX. 


xiii 


Constitutions of the states, act upon individuals, 
Commissions, authenticity of. 

Constables, ..... 

Convention of 1787, 

Contempts, ..... 
Copyrights, .... 

Contracts, the obligation of. 

Corruption of blood, . . 


SECT. 

, 617 

571 
. 716 

14 

. 83-86 
. 181-183 

250-253, 255-270 
394 


D 


Debts under the confederation, ..... 414 

Declaration of rights, ...... 464 

Democracy of the United States representative, . .511 

Disorderly behavior, power to punish, . . 79, 81, 83 


E 

Elections for Senators and Representatives, times, pla¬ 
ces and manner of holding, . . . . 72, 73 

Election returns, and qualifications of members of Con¬ 
gress, . . .76, 78 

Electors of President, how chosen, . . 288, 289, 297 

Engineer Department, ....... 629 

Executive of the United States, who, . . 286, 287 

Ex post facto law, ....... 234 

Expulsion of members of Congress, what for, . . 82 

F 

Fugitives from justice, ..... 399-401 

Foreign intercourse, ...... 456 

G 

Government of the United States, is a republic, . 508 


a 

(( 

a 

is a federative republic, 509 

it 

(( 

a 

is a democratic fed¬ 
erative republic, 510 

n 

i( 

n 

is a government of 
majorities, . 528-530 

a 

ii 

it 

is perpetual, 531-534 

(6 

a 

(( 

is sovereign in its 
national capacity, 520 

u 

it 

(( 

2 

is not a mere league, 581 


xiv 


INDEX. 


SECT. 

Government of the United States, sanction of is respon¬ 
sibility to the people, 513 
“ “ “ . principle of is the vir¬ 

tue of the people, 514 
“ “ “ . foundation of is the 

■consent of the people, . . . . . .512 

'Governments of the States are sovereig-n in a municipal 
'capacity,.521 


H 

House of Representatives, how composed, ... 37 

“ “ power of impeachment, . 50-53 

Habeas Corpus, Writ of,. 230-233 

High seas, ........ 187 

Imprisonment, judgment upon, ..... 70 

Importation of slaves, ..... 228, 229 

Imposts and duties, States forbidden to lay, without 
consent of Congress, .... 272, 275, 277 

Inspection laws,. 273, 275 

Importation laws,. 272, 273 

Indian Bureau,.612, 613 

Indian Relations,.. 614-626 


Journal of proceedings in Congress, 

Judiciary of the United States, how constituted, 

“ “ “ how organized, 

“ “ “ ^ its object, . 

Judiciary, National, its means of enforcing right, 

“ “ its officers, 

“ “ its process, 

“ “ its mode of executing judgment, 

Judiciary, Supreme Court, .... 

“ Inferior Courts, what, . 

“ Circuit Courts, how organized, 

“ District Courts, how organized, 

“ Compensation of judges, . 

Judicial power, how far it extends. 

Judicial functions, . . . . • 

Jurisdiction, Common Law, . . • • 

“ Adiiuralty and Maritime, • 

Justice of the Peace, . . . • 


. 87 

329 
683, 684 
686, 687 
688 
689-693 
694-698 
699-703 
324, 325 
326 

326 

327 
324, 328 
329, 382 
. 382 

370 

371-381 

713-715 




INDEX. 


Land Office, • • • • « 

Land's, how panted, . 

“ mode of survey, . 

“ survey and disposition of, 

“ titles of, ... . 

Laws, preservation of, . 

League of 1643, .... 

liOtters of Marque, 

Legislature, operation of, 

“ rules of, , 

M 

Moneys, bow drawn from the treasury. 
Mint,. 


Navy, Commissioners of, 
“ department of. 
New states, 


N 


O 


xv 

SECT* 

• 594 

595 
596-602 
602-606 
. 606 
568-570 
6, 17-19 
243 

660-682 

662-682 


237 

657-660 


. 638 
, 637 
403-406 


Ordinance of 1787, at large—^page 188. 

Order, resolution ^nd vote of Congress, must he signed 
by the President, . . . .' . 109,110 

Oath to support the Constitution, . . . 418-420 

Ordnance Department,.631 


Proprietary Governments,..4 

Patent Rights, . . . . . . 181, 182 

Priority of payment,. 222-224 

Presents,.. 239,240 

President,. 286,287 

“ mode of electing, . . . 286-292, 293,290 

“ qualifications of, .... 298,299 

“ who shall fill his place in case of removal, 300 

“ vacancy in the office of, . . , . 301 

“ compensation of, . . . , . 302 

“ oath of,.303 

“ power of to pardon, .... 304, 306 

“ power of to command the army and navy, 304, 305 

“ power of to make treaties, . . . 307-309 




xvi 


INDEX. 


President, power of appointment, 

“ to give information to Congress, 

“ to convene Congress, 

“ to execute the laws, 

“ , to receive ambassadors, 

V “ may be impeached. 

Pay Department, , . 

Pension, . . . , . 

Petition, the right of the people to. 

People of the United States one nation. 

Plan of 1754,. 

Patents and Copyrights, 

Private property, how taken. 

Press, its freedom, .... 

Post-office Department, 

Postmaster-general, ... 

Powers not delegated. 

Public acts, records, and judicial proceedings 
Purchasing Department, . 

Public ministers, who they are, 

“ “ credentials of, 

“ “ privileges. 

Piracy, what, ..... 

Public ministers, instructions of, . 

Passports,. 


Q 


Quartermaster General, 
Quorum, 


R 


SECT. 

307,310-316 

317.318 

317.319 
320 

317, 321 
323 
334 
611 
424, 426 
525-527 
. 20 , 21 
572-579 
390 
425 
640-645 
641 
433 
396-398 
633 
547-551 
560, 566 
562-564 
185, 186 
561 
567 


632 

77 


Ratifications, 422 

Ratification of the Constitution, .... 435-458 

Religion, Congress can make no law respecting, . 425 

Religious test,. 421 

Republican form of government guarantied, . . 463 

Requisition Bureau,. 610 

Royal governments, ...... 5 

Rights, enumeration of does not disparage, . . 433 

Representatives to Congress, who shall be electors of, 37, 38 
“ qualifications of, ... . 39-41 

“ apportionment of, ... 42, 43, 46 

mode of electing, .... 45. 








INDEX. 


xvia 


SECT. 

. 79,80 

403, 407-410 


Rules of proceeding, each House determines, 
and regulations of territories, . 

S 

Settlement of America,. 

Senate of the United States, how composed, . 

“ “ how chosen, . 

“ “ how divided, 

“ “ vacancies, 

“ “ President of, 

“ “ power to try impeach¬ 
ments, . . 67-69,71 

Senators, qualifications of,.60, 61 

Senators and Representatives, compensation of, . 91, 92 

“ “ privileges of, . 91,93-98 

shall not be appointed to 


1 

54, 55 
56 
57, 58 
57, 59 
62-66 


office. 


. 99- 

-101 

States, restrictions on, . . . 241, 

242, 272 

,281- 

-285 

Soldiery shall not be quartered in houses, 

• • 


428 

Searches and seizures shall not be, except. 

• 


429 

State constitutions, when adopted. 



465 

“ legislation, its object and extent. 

486-493; 

,495-497 

“ constitutions, how they agree. 


496, 

,497 

“ “ ' how they differ. 


498- 

-506 

“ department of, . 

• • 

545, 

, 546 

Secretary of legation, . . , 

• 

• 

552 

Sheriff,. 


711- 

-713 

State governments, operations of, 

“ “ legislative functions of. 

. 

. 

704 

. . 

705, 

,706 

“ “ judiciary of. 

709, 

,712, 

714 

“ “ executive of, , 

, , 

720, 

721 

Subsistence department, .... 



635 

Surgeon^general, ..... 

. 


636 

State governments,. 

. 

• 

463 

Slaves, . , . . . . 

. 228, 

229, 

402 

T 

Tax on exportation, .... 

• 


236 

Territory, power to acquire, • 

Titles of nobility not grantable, . . 

• 


226 

239, 

240, 

271 

Tonnage duties, ..... 

. 


278 

Topographical Bureau, .... 

. 


630 

Treason, . . . - . . . 

. 392, 

*393, 

39^ 


2* 






xvni 


INDEX. 


Treasury, Department of, . . . 

“ Secretary of, ... 

“ 1st Comptroller of, . 

2d “ ... 

“ 1st Auditor of) 

» 2d “ . . . . 

» 3d » ... 

“ 4th “ ... . 

» 5th “ ... 

“ Treasurer of the United States, 
“ Register of the Treasury, “ 

“ Solicitor of, “ . “ . 

Trial by jury, . . . . , 


SECT. 

. 581,582 

583 

584 

585 

586 

587 

588 

589 

590 

. . 591 

592 

593 

385-392, 396, 397 


U 


United States Bank,. 214-221,276 


V 


Virginia, recommendation of a convention, . . 13 

Vacancies in representation, ..... 48, 49 

Vice President, 62-64 

Veto, .. . . 105-109 

W 

Washington, letter of, to the states, . . . 11,12 

War, Department of,. 608 

War-office,.,609 

W’^ashington’s Farewell Address,—^page 178. 


Y 


Yeas and nays. 


87, 88 








INTRODUCTION. 


POLITICAL DEFINITIONS. 

1. Sovereignty,— is the highest power!* 

Thus, for a state, or nation, to be sovereign, it must 
govern itself,without any dependence upon another power.^ 
It must have no superiors.'^ But when a community, 
city, or state makes part of another community or state, 
and is represented with foreign powers by that com¬ 
munity or state of which it is a part, then it is not 
sovereign.^ 

2. Government,— is the whole body of constituted 
authority.® Thus, from the very origin of society, one 
portion of the people have exercised authority over the 
rest. The authority thus exercised is called the gov¬ 
ernment, and it derives its just powers from the consent 
of the governed.® 

3. Law,— is a rule of action.^ In this general sense, 
it signifies the rules of all action, and constitutes alike 
the rules by which the heavenly bodies move, nations 
are governed, and the plants grow. Laic, in a political 
sense, however, signifies a rule of human action. In a 
particular state, “it is a rule prescribed by the supreme 

1 Johnson. 

2 Vattel’s Laws of Nations, p. 16; Martin’s Laws of Nations, p. 23, 

3 Rutherforth’s Institutes, p. 282. ^ Martin, p. 25. 5 Crabbe. 

3 Declaration of Independence. 

7 1 Blacks. Commentaries, p. 38;—Johnson. 


19 



20 


INTRODUCTION. 


power ill the state, commanding what is right, and for¬ 
bidding what Is wrong.” 

4. Constitution,— is the constituted form of govern¬ 
ment.^ It is the fundamental law; the regulation which 
determines the manner in which the authority vested in 
government is to bo executed.^ It is delineated by the 
hand of the people.^ 

5. A Despotism,— is that form of government^ “in 
which a single individual, without any law, governs 
according to his own will and caprice.” An example of 
this kind of government may be found in Turkey, where 
the sultan exercises all the powers of sovereignty, with 
respect to the general administration of public affairs, 
but, even there, he is limited by certain customs and 
rules, as it respects private justice. 

6. A Monarchy,— is that form of government in 
which a single individual governs, but according to 
established laws.® The governments of Austria, Prussia, 
France, and England are examples of this form of 
government. The limitations placed upon the monarch 
are, however, very different in degree: thus, the power 
of the Prussian monarch is very great, while that of the 
king of England is so small as scarcely to be felt. 
The latter acts through his ministers, who are held 
responsible to the repr^entatives of the people, and can 
maintain their power only so long as they can satisfy 
public opinion. 

7. A Republic,— is that form of government in 
which the ivhole people, or only a part of the j^eople, hold 
sovereign power.^ The people of Athens were formerly 
an example of the first kind of republic, and governed 
themselves by primary assemblies of the people, a mode 
which could only be adopted where th^ people were 
chiefly citizens, and inhabitants of one capital city. In 

I Crabbe, Johnson. 2 Vattel, p. 26, 27. 

8 Supreme Court; 2 Dallas, p. 304. 4 Montesquieu, book 2d,chap. I. 

8 Montesquieu, Spirit of Laws, book 2d, chap. I. 6 Idem, 




irfTEODUCTIOX. 


21 


modern times the United States are an example of the 
same kind of republic, with this difference, that the peo¬ 
ple do not govern themselves by their assemblies, but 
by delegates, or through the principle of representation. 
An example of the second kind of republics may be 
found in Venice, Genoa, and the Dutch States,^ in all of 
which a part of the people, either absolutely or limited- 
ly, exercised the authority. The difference betw^ecn 
these kinds of republics will be understood from the 
following definitions. 

8^ A Democracy,— is when the sovereign power is 
in the hands of the whole people."^ The term Democracy 
is derived directly from the Greek word Demos, signi¬ 
fying the people^ 

9. An Aristocracy,— is when the sovereign power 

is in the hands only of a part of the people.^ This word 
is likewise of Greek derivation. It is compounded of the 
adjective Aristos, signifying best or wisest, and Kratos, 
signifying powder or strength; the w'hole woi*d signifies 
that form of government in -which a few of the wisest 
and best govern.Both Democracies and Aristocracies 
are Republics.^ ^ r 

10. A Party, —is any number of persons confeder¬ 
ated, by a similarity of objects and opinions in oppo¬ 
sition to others.® An illustration of this may be found 
anywhere. In England, the whigs and tories are two 
great parties, which have long divided the naticn. In 
Prance,,during the revolution, the jacobins and royalists 
were violently opposed. On the continent of Europe 
generally, there are the parties of the liberals and 
absolutists. In the United States, the federal and 
democratic parties divided the country till the termina¬ 
tion of the last war. 

1 Martin, p. 39. ^ Spirit of Laws, book 2d, chap. II. ® Idem. 

^ This was the original meaning; but, like other terms, it is confounded 
in the using. Aristocracies are seldom either the best or the wisest. 

5 Both Athens and Genoa were republics—the first a democracy and 
the second an aristocracy. ® Locke. 


22 


INTRODUCTION. 


11. A Faction,— is any number of persons, whether 
majority or minority, confederated by some common 
motive, in opposition to the rights of other persons, or to 
the interests of community.' The difference between 
party Vind faction then is, that the former is a difference 
of principle., and is founded on o. general or public object, 
the latter may have any motive, however personal or 
selfish, and be directed towards any end, however little 
connected with the public welfare. Thus, two divisions 
of the people diftering as to how the government shall 
be administered, are parties; but a section whoso object 
is to keep one portion of the people from the enjoyment 
of power, or to aggrandize an individual, or to divide 
among themselves all the offces of state, is o. faction. 

12. Legislature,— is iholaw-mahingpower. ^ Thus, 
in a Republic, it is thatbranchof the government in which 
the people have vested the power to make law's. 

13. Congress,— is a meeting for the settlement of na~ 
tional affairs, Avhether relating to one or more nations.* 
In the United States, the national legislature is called the 
Congress; in FiUrope, a cojiference of different powers 
by their ministers, is called a Congress; as the meeting 
of ambassadors at Laybach was called the Congress of 
Laybach. 

14. Legislative,— that which relates to law-malcing.^ 

lo. Executive, —that which relates to the execution 

of the laws.* Thus, the chief officer of the government, 
whether he be called King, President, or Governor, is 
denominated the Executive, —for on him, in most cases, 
the constitution devolves the duty of executing the laws. 
- 16. Judicial,®— that which relates to Xho administra¬ 
tion of justice. Thus, judicial duties are those wdiich 
devolve upon i\\o judges, who have to decide upon what 
is law, and to adjudicate between private rights. 

17. Statute Law',— is the express written will of 

1 Federalist. 2 Johnson, 3 Idem. 4 Idem. 

5 Idem. 6 Idem. 


nS’TRODUCTIOX. 


23 


the Legislature, rendered authentic by prescribed formsd 
Thus, the statutes of Ohio arc the laws enacted by the , 
Legislature of Ohio. It follows, from this definition in 
conjaexion with those of Constitution and Legislature, 
that statutes can be binding only when, l5^, they are 
executed according to the 'prescribed forms; and 2dly, 
when they are consistent with the constitution; for, the 
constitution being the fundamental law, created by the 
people themselves, all other laws are inferior to it. 

18 . Common La’w, —is that body of principles, usages, 
and rules of action which do not rest for their authority 
upon the positive will of the legislature.^ In other 
words, it consists of those customs and rules to which 
time and usage have given the sanction of law. Of 
such, it is plain, must be the great body of the laws of every' 
people; for the rules of business and the usages of society 
are so variable and complicated, as to be incapable of 
being made permanently the subject of statute law. The 
will of the legislature being, however, under the limita¬ 
tion of the constitution, that of the people, statute law is 
superior in force to common law; and wherever they are 
inconsistent with each other, the latter is abrogated by 
the former.^ 

19. A Corporation,— is defined to be a body j)olitic, 
having a common seal."* —It is an artifeial, or political 
person, maintaining a perpetual succession,^ by moans of 
several individuals, united in one body through a com¬ 
mon seal. They have a legal immortality, except so far 
as they are limited by the law of their creation. These 
were originally created for purposes of charity, trade, 
and education; but are now used for all purposes in which 
it is wished to transmit a common property. Thus, all 
banks, turnpike companies, colleges, and chartered so¬ 
cieties are examples of corporations. 

1 Kent’s Comm. 1 vol. p. 319. * Idem. 1 vol. 439. 

3 Black. Comm. 1 vol. p. 89. ■* Johnson. 

5 Black. Comm. 1 vol. p. 467. 


24 


I^^'Rt>DUCTrON. 


20. Charter, —is the act creating the corporation, 
or separate government, or the privileges bestowed upon 
a community, or a society of individuals.^ It is derived 
from the Latin term charta, signifying a writing.^ 

21. A Court, —is defined to be a place wherein 
justice is judicially administered.'^ In our country, and 
in the New-England States especially. Court has some¬ 
times had another signification, that of the legislative 
body; thus, the General Court of Massachusetts is the 
legislature. The former is, however, the correct mcan- 
ing. 

22. Municipal, —relating to a corporation. Munici¬ 
pal laws arc civil or internal, in opposition to national or 
external laws.^ Thus, lav/s relative to the descent of 
■property are municipal laws; but laws relative to war, 
the army, and navy, are external and national. 

23. Jurisdiction, —is extent of legal power.® Thus, 
a court has jurisdiction over certain things, as all sums 
over a certain amount, when its legal authority extends 
over them. A government has jurisdiction over a cer¬ 
tain territory, when its power extends over it. 

24. Impeachment, —is a public apeusation, by a body 
authorized to make it.® Such were the charges pre¬ 
ferred by the British House of Commons against Warren 
Hastings, Governor-general of India; and in this country 
by the House of Representatives, against Samuel Chase, 
one of the judges of the Supreme Court. 

25. Verdict, —is the true saying of a jury.^ It is 
the answer which Vijury make to the court and parties, 
when the plaintiff and defendant have left the cause to 
their decision. 

26. Judgment, —is the sentence of the law pro¬ 
nounced by the Court.® 

27. Crime,— a crime, or misdemeanor, is an act 

1 Black. Comm. 1 vol. 109. 2 Sullivan Polit. Class-Book, 49. 

3 Black. Comm. 3 vol. p. i23. Story’s Comm. 159. 6 Johnson. 

6 Johnson; Crabbe. 3 Black. Comm. 377. » 3Black. Comm. 395. 


INTRODUCTIOIN*. 


26 


committed, or omitted, in violation of the public laivSf 
either forbidding, or commanding it.^ A crime is a vio¬ 
lation of the duty to 5oc/e^y, in its aggregate capacity; 
while a private wrong, is a violation of the duty due to 
an individual. Crime is a civil, or legal term, signifying, 
not a moral wrong, but, a legal wrong. Thus, a man 
may have committed a great moral wrong, without being 
a criminal; and so, he may be a criminal, without being 
a moral offender,—in the legal falsehood on the 

one hand, and killing game at certain seasons on the 
other. 

28. Treason. —Treason is defined by the United States 
Constitution to be,— levying tear against them, or, in ad- 
hering to their enemies,—giving them aid and comfort.'^ 
The government of the United States is believed to be 
the only one which defines precisely, the crime of treason; 
and, without that definition, the president Montesquieu 
said, liberty could not exist. 

29. Felony, —is defined to be any species of crime, 
which occasions o. fojfeiture of lands and goods. ^ Fe¬ 
lony, in common speech, however, signifies a capital 
oflence. It may legally include others. 

30. Reprieve.— A. reprieve is the withdrawal of a judi¬ 
cial sentence, for a time, so that its execution is suspended.'^ 

31. Diplomacy, —signifies the intercourse which is 
carried on between different nations by means of their 
ministers, or agents.® 

32. Revolution, —is a radical change in the govern¬ 
ment of the country. It may be made in various ways 
—by force and blood, as in France, 1792; by the expul¬ 
sion of one family and settlement of another, as in 
England, 1688, and in France, 1830; or by a separation 
of one part of a country from another, as in the United 
States, in 1776. Thus, also, all acts in opposition to 
the laws, and which are not legitimate under the consti- 

J i Blackst. 5. 2 Constitution United States Court, 3 Sec. 31. 

3 4 Blackst. 94. ^ 4 Idem. 394. ^ Sullivan’s Polit. Class-Book, 225, 

3 


26 


INTRODUCTION. 


tution, are revolutionary, because their tendency is the 
overthrow of the laws. 

33. Ex POST FACTO. —An ex post facto law is a re¬ 
trospective criminal law. A retrospective law is one 
which acts upon things already done, and not merely 
upon those which are to be done. An ex post facto law 
makes something criminal which was not criminal when 
done. Thus, if the legislature should pass an act, de¬ 
claring that all persons who had not attended church last 
year should be imprisoned, that law would be unconsti¬ 
tutional, because ex post facto. But if the legislature 
should pass an act that those who had attended militia 
duty last year should be excused from paying taxes, and 
those who had not should not be so excused, such a law 
would be retrospective, but not ex post facto, because not 
criminal. An ex post facto law makes past acts crimi¬ 
nal, which were not so before.^ 

34. A Bill of Attainder, —is a special act of the 
legislature, inflicting capital punishments upon persons 
supposed to be guilty of high oflences, such as treason 
and felony, without any conviction in the ordinary course 
of judicial proceedings.^ If it inflict a milder punish¬ 
ment, it is called a bill of pains and penalties. 

35. A Bill, —is a term used in legislation, and sig¬ 
nifies the written form ot'a legislative act proposed to be 
passed. 

36. Revenue, —is the money raised for the uses of 
government. It may be derived from various sources; 
but must be raised by the public consent, and converted 
to public uses. 

37. A Treaty, —is an agreement between independent 
nations, and by the laws of nations, can be made only 
by the sovereign power, and is binding on the whole com¬ 
munity 

38. Naturalization, —is the act, by which a foreigner 

1 Story’s Comm. 212, 213. 2 idem. 211. 

3 1 Blackst. 257—Puff. Laws of Nations, b. 8, ch. 9, sect. 6. 



INTRODUCTION. 


27 


is made a citizen. The law, by which this is permitted, 
is called a naturalization law; and the acts by which a 
party avails himself of this law are the naturalization. 
America is believed to be the only country, where a 
general law is enacted for this purpose. In England, and 
most other countries, it may be done, as a matter of 
special favor; but, even then, the privilege never extends 
so far, as to make a foreigner eligible to the higher of¬ 
fices of state.* 

39. Bankruttcy, —is the act of becoming a bankrupt. 
Bankrupt, bankruptcy, and bankrupt laws, are legal 
terms, signifying a particular kind of insolvency, or failure 
to pay one’s debts. In common speech, one who cannot 
pay his debts, is a bankrupt,—but it is not so in law. 
Thus, by the law of England, a bankrupt is a trader, 
who secretes himself, or does other acts tending to de¬ 
fraud his creditors.^ In the United States, no general 
bankrupt law has been made; but, were there one, a bank¬ 
rupt would be one defined and described by that law, 

40. Test Act, — Religious test; these are also legal 
terms, and refer to certain legal acts of past times. A 
Test Act is one,*which requires all public officers and 
persons becoming citizens, before they can enter upon 
their duties, to subscribe to certain religious opinions, 
and perform certain religious acts. By the Constitution 
of the United States, this is expressly forbidden. ' But, 
under all other governments, something of this kind is 
required; thus, by the statutes of England, all civil and 
military officers, are required to make a declaration against 
transubstantiation, partake of the Sacrament of the Lord’s 
Supper, and obtain certificates of the same, before they 
can enter upon any such office.^ 

41. The Ballot, —signifies the ball,^ or ticket, by 

1 1 Blackst. 374. 

2 This is the definition; but the bankrupt is, now, one who honestly, 
as well as fraudulently fails, and gives up his property to his creditors.— 
2 Blackst. 471. 

2 Idem. 58—Wat. 25, ch. 2. ^ Johnson. 


28 


INTRODUCTION. 


which persons vote at an election. To ballot signifies 
voting by ballot^ i. e. by ball, or ticket. Formerly, 
voting was altogether viva voce, that is, by the voice ,— 
the elector designating by name the person voted for; 
now, elections are generally made by ballot. The name 
of the person voted for is written on a ticket, and depo 
sited in a box. 

42. Quorum,— is such a number of any body as is 
necessary to do business.* Thus, when it is said there 
shall be eleven directors of any institution, and seven 
shall constitute a quorum, seven is the number necessary 
to do business; and unless the contrary is expressed, a 
majority of a quorum only is necessary to a decision. 
Hence it often happens, that less than a majority of the 
whole decide important questions. 

■ 43 . Majority and Minority.— A majority is any 
nu7nber greater than one half, and a minority is any num¬ 
ber less than one half. One half, then, neither consti¬ 
tutes a majority nor minority; and, if a public body were 
so constituted, as to have an even number, with equal 
division of opinion, and no chairman, there never could 
be a majority, and consequently, no positive action. 
This has been the case in some public bodies, and is 
always attended with difficulty. 

44 . A Plurality, —is to have more than another 
number, though not always to have a majority of alt the 
given numbers. Thus, when there are several candi¬ 
dates at an election, one may have a plurality, though 
not a majority; for he may have more votes than any 
one, though not more than all put together. 

46. Indictment.— An indictment is a written accusa¬ 
tion of one or more persons, of a crime or misdemeanor, 
preferred to, and presented upon oath, by a grand jury.** 

46. A Grand Jury, —is a number of men not less 
than twelve, nor more than twenty-three, selected from 
the people in the body of the county, to enquire into of- 
I Johnson. 2 4 Black. Comm. 302.. 


INTRODUCTION. 


29 


fences against the states.‘ They are instructed by the 
court in the matters pertaining to their enquiries^ and 
then withdraw to receive indictments, which are 'preferred 
to them, in the 'name of the state, but at the suit of a 
private prosecutor-'^ After an examination, such of the 
bills as are found correct, are endorsed “ A true Bill,” 
—signed by the foreman; and hence becomes an oficial 
accusation, to be rebutted only, by proof at the trial. 

47. Taxes.— All contributions imposed by the govern¬ 
ment upon individuals, for the service of the state, are 
called taxes, hy whatever name known.^ Thus, the tithes 
imposed upon the people of England for the support of 
church government is a tax: so also imposts, duties, ex¬ 
cises, &c., are taxes. 

48. A Legal Tender,— is the tender of such an 
article as the law requires to be made, in payment of a 
debt. In the United States, gold and silver coin is the 
legal tender; and the states are forbid making anything 
else a tender,* but it is not so in many countries, nor has 
it always been so in this. 

1 4 Blackst. 302. * 4 Blackst. 302. 3 2 Story’s Comm. 419. 

3 ^ 


30 


ORIGIN OF THE 


CHAPTER I 

ORIGIN OF THE CONSTITUTION OF THE UNITED STATES* 


$ 1. The continent of North America was chiefly 
settled by emigrants from Great Britain. The jurisdic¬ 
tion over the new region, as well as the title to its lands, 
was claimed by the mother country, under the color of 
discovery and coriquest. Hence, to acquire the right of 
property, as well as to sustain themselves against oppo 
sition, the authority of Great Britain became necessary 
to the early colonists. This was given in the form of 
grants and charters, to companies and large proprietors. 
Such was the grant of the territory of Massachusetts to 
the Plymouth Company, and of Maryland to Lord Balti¬ 
more.* 

$ 2- There were originally three different forms of 
government in the colonies, viz.—The Charter, the Pro¬ 
prietary, and Royal Governments. The Charter Govern¬ 
ments were confined to New-England; the middle and 
southern colonies were divided between the Proprietary 
and Royal Governments. 

\ 3. The Charter Governments were^ composed of a 
Governor, Deputy-governor, and Assistants, elected by 
the people; these, with the freemen, i. e. citizens of the 
colony, were to compose the “General Courts,” which 
were authorized to appoint such officers, and make such 
laws and ordinances lor the welfare of the colony as to 
them might seem meet. These first forms of govern¬ 
ment in New-England contained the same principles 
as, and were doubtless the origin of, our republican 
system. 

• 1 Pitkin’s Civil History, p. 31. 2 Idem. p. 36. 


CONSTITUTION OF THE UNITED STATES. 


31 


$ 4. The Proprietary' governments were those of 
Maryland, Pennsylvania, the Carolinas, and Jersey. 
Part of these soon became royal governments. In the 
proprietary governments,the power of appointing officers 
and making laws rested in the proprietors, by the advice 
and assent, generally, of the freemen. In some of them, 
as in the Carolinas, singular irregularities were found. 
In all, great confusion took place. 

§ 5. In the royaP governments, which were New- 
York, Virginia, Georgia, and Delaware, the Governor and 
Council were appointed by the crown; and the people 
elected representatives to the colonial legislature. The 
Governor had a negative in both houses of the legisla¬ 
ture; and most of the officers were appointed by the 
king. * 

\ 6. These different governments, operating also upon 
a people of different habits and manners, as the Puritans 
of New-England, the Cavaliers of Virginia, and the 
Quakers of Pennsylvania, produced many diversities of 
legislation and political character. Notwithstanding 
these, however, the necessities of a common danger 
from hostile tribes of Indians, and of a common interest 
from similarity of circumstances, soon induced a union, 
or confederacy of the colonies. Those of Massachusetts, 
Plymouth, Connecticut, and New-Haven, as early as 
1643, formed a league, offensive and defensive, which 
they declared should be perpetual, and distinguished by 
the name of the United Colonies of New-England. This 
confederacy subsisted for forty years, under a regular 
form of government, in which the principle of a dele¬ 
gated congress was the prominent feature. 

{ 7- A congress of commissioners, representing New- 
Hampshire, Massachusetts, Rhode Island, Connecticut, 
New-York, Pennsylvania, and Maryland, was held at 
Albany, in 1754. This convention® unanimously re- 

' Pitkin’s Civil History, p. 55. 2 Idem. p. 71. 

* Kent’s Comrn. p. 191, 19:2. 


32 


ORIGIN OF TUB 


solved, that a nnion of the colonies was absolutely ne¬ 
cessary for their preservation. They proposed a gen¬ 
eral plan of federal government, which, however, was 
not adopted. 

$ 8. In October, 1765, a congress^ of delegates from 
nine states assembled at New-York, and digested a bill 
of rights on the subject of taxation. 

§ 9. In September, 1774, an association of twelve 
states was formed, and delegates authorized to meet and 
consult for the common welfare. 

$ 10. In May, 1775, the first congress^ of the thir¬ 
teen states assembled at Philadelphia; and in July, 1776, 
issued the Declaration of Independence. 

$ 11. In November, 1777, Congress agreed upon the 
celebrated Articles of Confederation, under which the 
United States successfully terminated the Revolution. 
This was the first formation of a general government of 
all the states, and continued till the adoption of the Con¬ 
stitution in 1788. This, however, had inherent defects, 
which forced the states to the adoption of the present 
system. During the Revolution, the pressure of an in¬ 
stant and common danger kept the states in a close union, 
and incited them to make all possible efforts in the com¬ 
mon defence. When that was over, however, mutual 
jealousies and separate interests, weakening the common 
bonds, soon proved the utter insufficiency of a mere 
confederacy for the purposes of national government. 
Then it was that the ablest heads and the purest hearts 
in the nation exercised their faculties in devising a new 
and better form of government. General Washington, 
in June, 1783, addressed a letter^ to the governors of 
the several states, in which he says, “There are four 
things which I humbly conceive are essential to the well- 
being, I may even venture to say, to the existence of the 
United States as an independent power. 1. An indis- 

. 1 Kent’s Comm. p. 193. 2 Idem. 195. 

® Marshall’s Life of Washingtoi}, vol. 5, c. 1. p. 46. 


CONSTITUTION OF THE UNITED STATES. 33 

soluble union of the states under one federal head. 2. 
A sacred regard to public justice. 3. The adoption of 
a proper peace establishment. 4 . The prevalence of 
that pacific and friendly disposition among the people of 
the United States which will induce them to forget their 
local politics and prejudices.” 

§ 12. Under the first head he remarked that, “It is 
only in our united character that we are known as an 
empire, that our independence is acknowledged, that our 
power can be regarded, or our credit supported among 
foreign nations. The treaties of European powers with 
the United States of America will have no validity on a 
dissolution of the Union. We may find by our own 
unhappy experience, that there is a natural and neces¬ 
sary progression from the extreme of anarchy to the 
extreme of tyranny ; and that arbitrary power is most 
easily established on the ruins of liberty abused to li¬ 
centiousness.” Such were the sentiments of Washing¬ 
ton, and such were those then of the nation. 

§ 13. In January, 1786, the Legislature of Virginia 
recommended a meeting of -commissioners from the 
several states to -review the powers of government. 
The delegates of five states met at Annapolis, but ad¬ 
journed, proposing a general convention at Philadephia. 

k 14- In 1787? the convention of delegates from twelve 
states was convened, and after much deliberation, formed 
the present Constitution of the United States. 

^13. By resolution^ of the convention, it was directed 
to be carried into effect when ratified by the conventions 
of nine states chosen by “the people thereof.” That 
ratification, after much opposition, scrutinizing discus¬ 
sion, and the adoption of several amendments, it finally 
received, and all the states, eventually assenting to its 
provisions, became members of the Union. In 1789 it 
went into practical operation, and from that period to 
this, more than forty years, has withstood unharmed 
1 Marshall’s Wasli. vol. 5,p. 129. 


34 


OEIGIN OF THE 


the various violent influences of local feuds, opposing 
interests, domestic insurrection, and foreign violence. 

§ 16. We have seen that, at several different periods, 
viz. 1643, 1754, 1765, 1774, 1777, and in 1787, the 
territories composing what is called the United States, 
formed associations for the purposes of a common go¬ 
vernment and general welfare. Let us now examine 
how these were originally constituted, and in what man¬ 
ner modified by time and experience. 

§ 17. By the articles of confederation made in 1643, 
between the colonies of Massachusetts, Connecticut, 
and Ncw-Haven, it was expressly declared to be a 
league, under the name of the United Colonies of New- 
England. The chief points in this confederation were,— 
1st. That each colony should have peculiar jurisdiction 
and government within its oivn limits. 2d. That the 
quotas of men and money were to be furnished in pro¬ 
portion to the pojmlation, for which purpose a census 
was to be taken from time to time of such as were able 
to bear arms. 3d. That to manage such matters as 
concerned the whole confederation, a Congress of two 
commissioners from each colony should meet annually, 
v.ith power to weigh and determine all affairs of war 
and peace, leagues, aids, charges, and whatever else 
were proper concomitants of a confederation offensive 
and defensive; and that to determine any question, 
three-fourths of these commissioners must agree, or the 
matter is to be referred to the General Courts. 4th. That 
these commissioners may choose a president, but that 
such president has no power over the business or pro¬ 
ceedings. 5th. That neither of the colonies should en¬ 
gage in any war without consent of the general com¬ 
missioners. 6th. That if any of the confederates 
should break any of these articles, or otherwise injure 
any of the other confederates, then such breach should 
be considered and ordered by the commissioners of tlie 
other colonics. 


CONSTITUTION OF THE UNITED STATES. 35 

§ 18. Now it will be observed that this confederacy 
was, by agreement, a mere league, from motives of amity, 
for objects of general offence and defence. such, it 
was as good a model as any which history presents us; 
but as a government, it was utterly inefficient: its prin¬ 
cipal defects in the last point of view were, 1. The want 
of an Executive, without which it could never act as a 
whole. All the acts of the commissioners had to be en¬ 
forced by each separate colony: they did not act upon 
individuals. 2. The want of a General Judiciary, b}’’ 
which offences arising between the several members, 
or against the whole confederacy, might be taken cog¬ 
nizance of. 3d. The want of any general power to 
obtain credit or emit money. In short, this league did 
not pretend to be a government, and was deficient in 
nearly all the attributes of sovereignty. 

§ 19. Upon the last provision, that providing a reme 
dy for breaches of the league by one of the confeder¬ 
acy, it is worthy of remark, that it never entered into 
the heads of people then, that it was possible for one 
party to a compact to make itself judges of its own 
breaches of it: oh the contrary, it was provided that 
such breaches should be judged of by the other members 
of the confederacy. It was reserved for a much later 
period of hisfory, and it would seem for for more inge¬ 
nious men, to divine a mode by which a party to a con¬ 
tract can at once make itself a judge of its own viola¬ 
tions of it, and invalidate at pleasure its provisions. 

§ 20. The next plan of association was that formed 
by the commissioners who mot at Albany in 1754. It 
was not accepted by the mother country, but may serve 
to show what progress in ideas of government had then 
been made by the colonists. It is remarkable that the 
scheme proposed did not purport, like the other, to be a 
league, or confederation, but a plan for one general gov¬ 
ernment. Its principal provisions were,—1. That the 
general government should be administered by a presi- 


36 


OKIGIN OF THE 


dent-general appointed by the crown, and a grand coun¬ 
cil chosen by the representatives of the people in their 
general assemblies. 2- That tho council should be 
chosen every three years, and shall meet once each 
year. 3. That the assent of the president be necessary 
to all acts of the council, and that it is his duty to see 
them executed. 4. That the president and council 
may hold treaties, make peace, and declare war with 
the several Indian tribes. 5. That for these purposes 
they have power to levy and collect such duties, imposts, 
and taxes as to them shall seem just. 

§ 21. It will be seen that this was a much nearer 
approach to an organized government than the con¬ 
federacy of 1643. It provided for a strong executive, 
but was without the sanction of a general judiciary, and 
made no provision for regulating the currency. 

§ 22. We come now to the articles oi confederation. 
During the early part of the Revolution, the powers of a 
general nature were executed without question or 
hinderance by a 'congress of deputies from the several 
states. Patriotism and a common danger absorbed all 
other principles, and made ordinary ties unnecessary. 
A universal opinion, however, prevailed in favor of 
union, and after much deliberation, ^congress in No 
vembor, 1777, agreed upon the articles of confederation. 
They were, after various delays, ratified by the different 
states; the principal objection being in respect to the 
wild lands, which were claimed by several of the states, 
but which others urged should go to bear the common 
burthen. In the sequel, these lands were nobly ceded 
by the states who held them, to the common benefit of 
the Union. 

\ 23. The Articles of Confederation provided,— 

1st. That the style of the Confederacy should be the 
“United States of America.” 

2d. That each state should retain its sovereignty, 
* Journal of Congress, vol. 2, p. 475. 21 Kent’s Comm. 197. 


CONSTITUTION OF THE UNITED STATES. 37 

independence, and such rights as were not delegated to 
the general Congress. 

3d. That the object of the league was the general 
welfare, and the common defence against foreign ag¬ 
gression. 

4th. That the citizens of one state shall have the 
privileges of citizens in another, and that full faith and 
credit shall be given to the records, acts, and judicial 
proceedings in another state. 

5th. That for the management of the general inter¬ 
ests, delegates shall be annually appointed to meet in 
Congress,—each state having not less than two nor 
more than seven; and that in determining questions in 
Congress, each state shall have one vote. 

6th. That no state shall, without the consent of Con¬ 
gress, enter into any treaty or alliance with any for¬ 
eign power or nation, or with any other state; nor lay 
any imposts or duties interfering with any stipulations 
contained in any treaty made by Congress; nor keep 
any vessels of war or armed forces in time of peace, 
except such as Congress may deem necessary; nor en¬ 
gage in any Avar without the consent of Congress, un¬ 
less the state be actually invaded, or the danger immi¬ 
nent; nor grant letters of marque, unless such state be 
infested with pirates. 

7th. All charges for the general welfare shall be 
defrayed out of a common treasury, which shall be 
levied in proportion to the value of land within each 
state. 

8th. The “United States in Congress assembled” 
shall have the exclusive right of making peace and war; 
entering into treaties and alliances; granting letters of 
marque, and establishing courts and rules for the trial 
of piracies and felonies, and determining questions in 
relation to” captures; and that the Congress have the 
power to determine all questions and differences be¬ 
tween two or more states, concerning any cause what- 
4 


38 


ORIGIN OF THE 


ever, which authority shall be exercised by instituting 
a court in manner and form as provided, where judg¬ 
ment shall be final and decisive; and that they have 
power to fix the standard of weights, measures, and 
coin; establish Post-offices and commission Officers; 
that they shall have power to appoint a committee of 
the states, and such other civil officers as may be ne¬ 
cessary to manage the general affairs of the United 
States under their direction; to elect their President; to 
fix the sums of money to be raised; to borrow money 
and emit bills of credit; to agree on the number of for¬ 
ces to be raised, which are to be distributed among the 
states in proportion to their white inhabitants; that ‘^the 
United States” shall not exercise these powers, unless 
nine states assent to the same, nor shall any question 
except that of adjournment be determined unless by the 
votes of a majority of the states. 

9th. It is further provided, that the committee of the 
states, or any nine of them, shall be authorized to exe¬ 
cute, in the recess of Congress, such of the powers of 
Congress as the United States, or any nine of them shall 
think proper to vest them with. 

10th. All debts contracted under the authority of 
Congress shall be deemed and considered as a charge 
against the United States, for which the public faith is 
pledged. 

11th. That every state shall abide by the determina¬ 
tions of Congress upon the questions submitted to it, 
and the union shall he 'perpetual. 

§ 24. Such is a synopsis of the articles of confed¬ 
eration, under which the United States terminated the 
war of the Revolution, and continued till the adoption 
of the Constitution. It will be remarked, 

1. That the states still assume the style of a league 
or confederacy, and that, 2dly, they had notwithstanding 
granted away many attributes of sovereignty, even 


CONSTITUTION OP THE UNITED STATES. 39 

greater than those proposed to be vested in the Presi¬ 
dent and Council by the plan of 1754. 

$ 25. This Confederacy had many obvious and pal¬ 
pable deficiencies, as a government, principally, how¬ 
ever, in the mode and process of its administration. 

1. There was still wanting an Executive in form, 
though nearly all its powers were granted to Congress 
and the “committee of the states.” 

2. No general Judiciary was provided; yet they had 
gone so far as to provide a Marine or Admiralty Court, 
and a general tribunal to settle conflicts and disputes 
between the several states. 

3. The great deficiency was, that the articles of con¬ 
federation did not act upon individuals, but upon the 
states; and that to raise men and money, it was neces¬ 
sary to act through the medium of many distinct go¬ 
vernments. 

§ 26. By a comparison of the original association of 
1643, the plan of 1754, and the articles of confedera¬ 
tion, we find that the minds of the colonists had gradu¬ 
ally tended from the notion of separate sovereignties 
to that of a general and united government. Each 
change, founded on experience, had given additional 
strength to the confederacy. Thus the association of 
1643 was a simple league, existing by means of trea¬ 
ties, and exercised through commissioners; and though 
possessing many of the attributes of sovereignty, holding 
them only through an alliance. The plan of 1754, 
though not adopted, was that of a general government, 
and had a strong executive. The articles of confeder¬ 
ation, though reverting back to the form of a confeder- 
acy, greatly increased, in theory, the powers of govern¬ 
ment: For example, it superadded to the powers of for¬ 
mer Congresses, those of emitting bills of credit, estab¬ 
lishing Marine Courts, and judging between the states. 
Under this confederation, the United States, by the 
peace of 1783, achieved their separate and independent 


40 


OKIGIN OF THE 


existence as a nation. Yet, we have already seen, it 
was found insufficient for the purposes of a stable go¬ 
vernment, and how, in 1787 , the present Constitution 
was formed and adopted. 

§ 27- In this chapter we have established these pro¬ 
positions :— 

1st. That the idea of a union of the colonies origin¬ 
ated in the very earliest stage of their existence. 

2d. That their idea was that of a government exer¬ 
cised for the general welfare^ and founded upon a rep¬ 
resentation of the people. 

3d. That for this purpose they from time to time 
formed leagues and confederacies. 

4th. That these associations were made closer and 
stronger, as time and experience progressed, 
r 5th. Lastly, that they were all merged in the “more 
perfect union” and general government formed by the 
Convention of 1787* 


CONSTITUTION OF THE UNITED STATES. 


41 


CHAPTER II, 


CONSTITUTION OF THE UNITED STATES. 


PREAMBLE, 

$ 28. We, the People of the United States, in order to 
form a more perfect union, establish justice, ensure domes¬ 
tic tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

$ 29. In this preamble are asserted,—1st, the power 
making the Constitution, “We the People,” &.C.; 2dly, 
the object for which it was formed, the more perfect 
union, general welfare, «Scc.; 3dly, the subject of it, 
the United States. 

$ 30. The first position, that “We the People do or¬ 
dain,” (See., is the foundation of the most solemn inquiry 
which ever agitated the American people,—whether 
this phrase be a mere nullity, or whether the Constitu¬ 
tion was indeed formed by the whole people! 

§ 31. It is one of the rules* for interpreting laws, that 
they must be understood according to the context, i. c. 
the whole must be tahen in connexion. This passage 
will, therefore, be better understood when we have re 
viewed the entire Constitution. The preamble throws 
light upon the instrument, and the instrument upon the 
preamble. It is sufficient to remark here, that the 
terms used are in perfect accordance with the mode 
by which the Constitution was ratified; this was by con¬ 
ventions^ of the people, and not by the legislatures of 

* Blackstone’s Comm. 59. - 2 Pitkin’s Civil Hist. p. 264. 

4 * 


42 


CONSTITUTION OF 


the states. On the other hand, the convention^ which 
formed the Constitution was composed of delegates cho¬ 
sen by the state Legislatures. The necessary infer¬ 
ence is, that the states, in their official capacity, pro¬ 
posed the Constitution, and the people, by ratifying it, 
gave it authority: it is therefore a government founded 
by separate states, but receiving its sanction and validity 
from the whole people. 

§ 32. 2d, The objects proposed are exactly consist¬ 
ent with this idea. A perfect union, and a government 
legislating for the general icelfare, are incompatible 
with separate and independent sovereignties. The terms 
independence and sovereignty, used in relation to mat¬ 
ters of government and politics, must of course be un¬ 
derstood in a political sense, and according to our defi¬ 
nition. There are some common acceptations of these 
terms in which a much lower importance is attached to 
sovereignty. Thus, a man may be perfectly sovereign 
in his own house, and yet be subject to the laws of so¬ 
ciety. An animal may be utterly independent of an¬ 
other animal, and yet a member of, and subject to the 
laws of, the animal kingdom. In this sense the states, 
considered as composing a society, are sovereign and 
independent in their domestic and municipal relations. 
These terms, in their political sense, have a higher 
meaning: as applied to nations, independence does not 
admit of a close union, nor sovereignty of another go¬ 
vernment legislating for the general welfare. 

THE CONSTITUTION. 

§ 33. The Constitution of the United States contains 
seven articles,-r-r.to which were added several miscella¬ 
neous amendments, 

Article 1st, Relates to the Legislative Power. 

Article 2d. To the Executive Power. 

Article 3d, To the Judicial Power. 

» Pitkin’s Civil Hist. p. 219. 


THE UNITED STATES. 


43 


Article 4th. To the validity of Public Acts and Re¬ 
cords, —the rights of Citizenship, —the admission of 
new States, —and the forms of State Governments, 
Article 5th, Relates to the mode of amending the 
Constitution, 

Article 6th. To the national faith and the binding 
force of the Constitution. 

Article 7th. To the mode of its ratification, 

§ 34. That we may have an accurate view of the 
Constitution, not merely as it is written, but as it has 
been construed, and acted upon by the various depart¬ 
ments of the government, we shall take these Articles 
up by sections, and consider them in connexion with 
judicial and other decisions upon them, 


ARTICLE I. 

5 35. Section 1 st, All legislative powers herein 
granted shall he vested in a Congress of the United 
States, which shall consist of a Senate and House of 
Representatives, 

$ 36. Whenever power is vested in a representative 
body, it is usually divided between a body of direct rep¬ 
resentatives and one more remote and difTerently con¬ 
stituted. Thus, in Great Britain, the legislative power 
is vested in the Commons and the House of Peers; so 
also in France, the House of Deputies and the Peers; 
so also the legislative power of the several states is 
similarly vested in two houses, The provision is a 
wise one, in rendering measures less precipitate, and in 
removing one portion of the Legislature from the im¬ 
mediate action of popular passion, while it retains it 
within the ultimate influence of the people. 

$ 37. Section 2 d. First clause. The House of Rep¬ 
resentatives shall he composed of members chosen every 
second year hy the people of the several states; and the 
electors in each state shall have the qualifications requisite 


44 


CONSTITUTION OF 


for electors of the most numerous branch of the state 
Legislature. 

§ 38. About the frequency of elections there has been 
much dispute. In England, the period for which a re¬ 
presentative is chosen is seven years j in some of the 
states it is two, and in some only six months. In the 
Constitution it is fixed at two years, as being a period 
sufficiently long to give the people some time for reflec¬ 
tion, and yet sufficiently short to secure the responsibility 
of the representative. 

As the electors oi the different state Legislatures varied 
materially, it was thought proper that the representatives 
from each state should be chosen by the people, in the 
manner they had appointed for the choice of their own 
legislature. 

\ 39.. 2d clause. No person shall he a representative 
who shall not have attained to the age of twenty-five years, 
and been seven year's a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that state 
in which he shall be chosen. 

§ 40. The propriety of requiring a seven years’ citizen¬ 
ship cannot be doubted; aliens cannot be regarded as a 
part of the nation; and length of time, as well as natu¬ 
ralization is required, to make them acquainted with the 
interests of the country. 

§ 41. A representative must be an inhabitant o^ the 
state from which he is chosen. In respect to this provi¬ 
sion, a question has arisen, whether a man residing at the 
seat of government in his official capacity ceases to be a 
legal inhabitant of the state of which he was a citizen? 
It was decided in the case of Mr. John Bailey,* a repre¬ 
sentative from Norfolk district, Massachusetts, who had 
for several years been a clerk in the department of State, 
that an official residence in the District of Columbia did 
not take away any of his qualifications as a citizen of the 
state whence he came. This decision will probably be 
* See Journals of Congress. 


THE UNITED STATES. 


45 


adhered to, as a contrary one would at once destroy all 
the political privileges of those who become members of 
the government, and therefore would not have been 
within the spirit of the Constitution. 

§ 42. 3d clause. Representatives and direct taxes 
shall he apportioned among the several states which may 
be included within this Union, according to their respective 
numbers, which shall he determined hy adding to the whole 
number of free persons, including those hound to service 
for a term of years, and excluding Indians not taxed, 
three-fifths of all other persons. The actual enumeration 
shall he made leithin three years after the first meeting 
of the Congress of the United States, and within every 
subsequent term of ten years, in such a manner as they 
shall hy law direct. The number of representatives shall 
not exceed one for every thirty thousand, hut each state 
shall have at least one representative; and until such 
enumeration shall he made, the state of New-Hampshire 
shall he entitled to choose three; Massachusetts, eight; 
Rhode Island and Proindence Plantations, one; Con¬ 
necticut, five; New-York, six; New'-Jersey, four; Pennsyl¬ 
vania, eight; Delaware, one; Maryland, six; Virginia, teii; 
North Carolina, five; South Carolina, five; and Georgia, 
three. 

§ 43. It is to be observed, that the representative po¬ 
pulation is not the whole population of the United States; 
after including “all free persons,” “excluding Indians 
not taxed,” it includes “ three fifths of all other persons.” 
The other persons here mentioned are slaves, and conse¬ 
quently the states holding slaves have a representation 
for three-fifths of the whole number: thus, in some of the 
states, the slaves exceed the whites in number, and as 
these slaves exercise no political privileges themselves, 
it follows that their masters hojd double the political 
power held by the citizens of the non-slave-holding states. 
Of this, however, they do not, and ought not to complain, 
as it was the necessary result of the compromise, without 


46 


CONSTITUTION OF 


which it is probable the Union could never have been 
formed. 

} 44. It is said that the electors must be the same as 
those for “the most numerous branch of the state Legis¬ 
lature.” Some of these electors, as in New-Jersey, 
North and South Carolinas, must have ^ property quali¬ 
fication, and others again come in under universal suf¬ 
frage; hence the qualifications for electors are not 
uniform. 

§ 45. The mode of electing representatives to Con¬ 
gress is not the same in the several states. Thus, in 
some, it is by general ticket, as in Connecticut' and 
New-Jersey: in others, by the district system, as in New- 
York and Pennsylvania. 

\ 46. Under this section has arisen a question in respect 
to the mode of apportioning representatives. Congress 
passed a law,^ giving a number of representatives equal 
'to the ivholepopulation of the United States, divided by 
30,000. This gave a larger number than would arise 
by dividing the population of the respective states by 
the same number, and adding together the quotients. 
The additional members were given to the states having 
the largest fractions. This principle was objected to by 
General Washington, who was then President, and the 
bill returned with his reasons. The objection was, that 
the Constitution required that the representation should 
be apportioned among the several states, and not accord¬ 
ing to the whole population ot the Union. The bill was 
returned to Congress, the matter again discussed, and 
the objectionable feature struck out. The same prin¬ 
ciple came up under the census of 1830.^ The House 
of Representatives passed the apportionment bill in the' 
usual form, and the Senate inserted a provision, making 
the number for a single representative a divisor of the 
whole representative population of the United States, 

1 Connecticut is now Districted. 2 Pitkin’s Civil Hist. 351. 

* Journals of Congress, 1832. 


THE UNITED STATES. 


47 


and giving a representative to the largest fraction. The 
House would not agree to the principle, and the Senate 
finally receded from their ground. It may therefore be 
now considered as a settled construction of the Consti¬ 
tution, that the ratio of representation must be a common 
divisor of the numbers in the several states^ and not in 
the whole Union. 

$ 47* This section likewise requires, that an enume¬ 
ration should be taken every ten years of the inhabitants 
of the United States. This commenced in 1790, by Act 
of Congress, and has been continued ever since. The 
ratio of representation has been altered at each census. 
The ratio, that is, the common divisor, or number which 
is entitled to a representative, has been constantly in¬ 
creasing, but the increase being in a less proportion than 
that of the population, the number of representatives has 
likewise increased.‘ 

§ 48. Clause 4th. When vacancies happen in the 
representation from any state, the executive authority 
thereof shall issue writs of election to fll up such vacan¬ 
cies. 

§ 49. The necessity for this clause frequently arises, 
by virtue of the death or resignation of members of 
Congress. In some states, as in Massachusetts and 
Vermont, repeated elections have to be held before a 
choice can be made, in consequence of a majority of the 
votes being required to elect. 

§50. 5 th clause. The House of Representatives shall 
choose their Spealcer, and other oficers, and shall have " 
the sole poiver of impeachment. 

§ 51. The power of impeachment is one of the most 
important under the Constitution. It is the only mode in 
which the Judiciary is made responsible, and it is a 

> In 1790, the ratio was 33,000, and the number of Representatives 
106. In 1800, the same ratio, but 140 members. In 1810, ratio 35,000, 
members 181. In 18^0, ratio 40,000, members 210. In 1830, ratio 
47,700, members 240. 


48 


CONSTITUTION OF 


salutary and necessary check upon the President and 
his officers. 

§ 52. The most prominent examples of impeachment 
under the Constitution are those of Judges Chase and 
Peck.^ In March, 1804, the House of Representatives, 
y resolution, impeached Samuel Chase,—one of the 
Judges of the Supreme Court,—of malversation, im¬ 
proper and arbitrary conduct in office^ In 1830, they 
did the same in relation to James Peck, District 
Judge for the state of Missouri. They were both ac¬ 
quitted. 

$ 53. The mode of impeachment is this: the House 
pass a resolution to impeach, and then appoint a committee 
to manage the impeachment, and prepare the articles; 
articles making a plain statement of the case, in the 
manner, but with less formality than an indictment, are 
then adopted by the House. The Senate are then 
officially informed that such charges are preferred by 
the House, and resolve, that on a given day the Senate 
will sit as a Court of Impeachment. In the meantime, 
a summons to appear and answer is served upon the 
party, and as many subpoenas for witnesses are issued 
as the managers or the party accused may direct. On 
the day appointed for trial, the appearance or non- 
appearance of the party is. recorded, and at twelve 
o’clock, the Secretary of the Senate administers an oath 
to the President of the Senate, that “he will do impartial 
justice, according to the Constitution and laws of the 
United States.” The same oath is then administered 
by the President to each senator present. ^Qouncil are 
then heard for the respective parties; all motions are 
addressed to the President, and decisions are made by 
ayes and without debate. Witnesses are examined 
and cross-examined, in the usual manner. Questions 
put by senators are reduced^to writing, and put by the 

1 See Journal of the 8th Congress. 

* Rules adopted by the Senate on the trial of S. Chase, 


THE UNITED STATES. 49 

President. It requires two-thirds to make a convic¬ 
tion. 

§ 54. Section 3d. 1st clause. The Senate of the 
United States shall he composed of two senators from each, 
state, chosen hy the Legislature thereof, for six years, 
and each senator shall have one vote, 

§ 55. In the Senate each state is represented. 

It has been said by an eminent jurist,* that this feature 
of the Senate, and the mode of its election by the Legis¬ 
latures, are evidences of the separate and independent 
existence of the states. If, by separate and independent 
be meant any thing more than local and municipal inde¬ 
pendence, the truth of the proposition is not readily 
seen. The counties of Great Britain were till recently 
equally represented in the House of Commons; so also 
are the counties of the state of Maryland in the state 
Legislature; yet, who would attribute a separate exist¬ 
ence, or independent power, to these counties, beyond 
mere local county purposes ? The very contrary of this 
position, as it respects the United Slates, is shown from 
the fact, that the Senate votes, not by states, but by 
persons: hence, the members from a given state may, and 
often do, vote on opposite sides of a question. Here the 
representation of the state is neither separate nor inde¬ 
pendent, but mixed up with the whole mass. It is no 
doubt true, that this provision was intended to secure to 
the people of each state an equality of political power 
in the Senate; but it no more proves tlie separate exist¬ 
ence, independence, or sovereignty of the states, than the 
government of Maryland acknowledges the separation 
and independence of its counties. As to the election of 
the senators by the state Legislatures, it is only the mode 
by which the people of the state exercise their power. 
In the same manner, the counties in Maryland send an 
equal number of delegates to a convention, which con¬ 
vention choose the state Senate; now the convention is 
> 1 Kent’s Comm. 211. 

5 





50 


CONSTITUTION OF 


the mere ybrm through which the people express their 
will; —it is no acknowledgment of any separate authority 
in those counties. 

§ 56. As it is provided, that the senators shall bo 
chosen by the Legislatures, it is settled by the practice 
of most of the states, that they may be chosen hj joint 
ballot of both houses, voting by individuals, and not ne¬ 
cessarily by the Legislature in its official capacity, each 
house having a negative on the other. 

§ 57. 2d clause. Immediately after they shall be 
assembled, in consequence of the first election, they shall 
be divided, as equally as may be, into three classes. The 
seats of the senators of the first class shall be vacated at 
the expiration of the second year, of the second class at 
the expiration of the fourth year, and of the third-class 
at the expiration of the sixth year, so that one-third may 
be chosen every second year; and if vacancies happen 
by resignation or otherwise, during the recess of the 
Legislature of any state, the executive thereof may make 
temporary appointments, until the next meeting of the 
Legislature, which shall then fill such vacancies. 

§ 58. The members of the first Senate were, in con¬ 
formity to the Constitution, divided by lot into three 
classes, the terms pf service of which expired in two, 
four, and six years, and ever since one-third has been 
removed every second year. In drawing the lots, care 
was taken that but one vacancy should occur at the same 
time in the representation of any one state. 

§ 59. It has been decided^ under this clause, that the 
Governor cannot make an appointment during the recess 
of the Legislature, in anticipation of a vacancy. Thus, 
the term of James Lanman, senator from Connecticut, 
expired on the 3d of March, 1825. The President had 
convoked the Senate to meet on the 4th of March. 
The Legislature of Connecticut did not meet till May. 

1 Gordon’s Digest of the Laws of the United States, 1827; Appendix, 
note 1. 


THE UNITED STATES. 


51 


The Governor, in February, appointed Mr. Lanman to 
sit after the 3d of March. The Senate decided that such 
an appointment cannot be constitutionally made; the 
vacancy must first occur. 

§ 60. 3d clause. No person shall be a senator who 
shall not have attained to the age of thirty years, and been 
nine years a citizen of the United States, and who shall 
not, ivhen elected, be an inhabitant of that state for which 
he shall be chosen. 

§61. All these limitations are manifestly founded 
upon propriety. It is probable they might have been 
made still stronger without injury to the public in¬ 
terests. 

§62. 4th clause. The Vice President of the United 
States shall be President of the Senate, but shall have no 
vote tinless they be equally divided. 

§ 63. Legislative bodies have generally the power 
of choosing their own presiding officer; in this instance, 
however, the Constitution conferred the office of presiding 
over the Senate to the Vice President; one reason may 
have been that he has no other duties to perform, and 
the chair of the Senate conferred dignity upon him. The 
casting vote of the Vice President has been frequently 
given, and in some very important cases. 

§ 64. In 1826,* a question arose whether the Vice 
President had the power of preserving order independent 
"of the rules of the Senate? The then Vice President, 
Mr. Calhoun, decided that he had not. In 1828, how¬ 
ever, the Senate made a rule, that “every question of 
order shall be decided by the President without debate, 
subject to appeal to the Senate.” 

§65. 5th clause. The Senate shall choose their other 
ofeers, and also a President pro tempore, in the absence 
of the Vice President, or lohen he shall exercise the ofice 
of President of the United States. 

§ 66. The power of choosing a President pro tempore, 
1 1 American Annual Register, 86, 87; 3 Idem, 99. 


52 


CONSTITUTION OF 


is constantly exercised, the Vice President being fre¬ 
quently absent. 

§ 67. 6th clause. The Senate shall have the sole 
power to try all hnpeachments. When sitting for that 
purpose, they shall he on oath or ajfirmation. When the 
President of the United States is tried, the Chief Justice 
shall preside; and no’person shall be convicted without the 
concurrence of two-thirds of the niemhers present. 

§ 68. The impeaching power, and some of the rules 
of conducting an impeachment, have been heretofore 
noticed.* This mode of impeachment and trial under 
the Constitution is derived from the British Parliament, 
where the Commons have the sole power of impeach¬ 
ment, and the House of Lords the power of trial. It 
seems, however, to have been introduced into the Com¬ 
mon Law from the customs of the Germans; among 
them, however, the people were both accusers and 
judges. 

§ 69. In the trial of the President, the Chief Justice 
presides, in order to preclude the Vice President, who, 
in case of a vacancy, succeeds to the Presidency, from 
having any part in the creation of that vacancy 

§ 70. 7th clause. Judgment in case of impeachment 
shall not extend farther than to a removal froiii office, and 
disqualification to hold and enjoy any office of honor, 
trust, or profit, under the United States; hut the party 
convicted shall, nevertheless, he liable, and subject to 
indictment, trial, judgment, and punishment according to 
law. 

In England, the judgment upon impeachments extends, 
not only to removal from office, but to the whole penalty 
attached by law to the offence. The House of Lords 
may, therefore, inflict capital punishment, banishment, 
or forfeiture of goods, according to its discretion.^ 

$ 71. In another place^ we have stated the mode of 

1 Sections 51, 52, 53. 2 Com. Digest. Parliament, L. 44. 

3 Section 53. 


THE UNITED STATES. 


53 


procedure in the Senate upon the trial of impeachments. 
When the evidence is gone through, and the parties have 
been heard, the Senate proceed to consider the case. 
If debates arise, they are in secret; a day is then as¬ 
signed for a public decision by yeas and nays. When 
the court has met, the question is propounded by the 
President of the Senate to each individual member by 
name: whereupon the member rises and answers, guilty, 
or not guilty, as his opinion is. If upon no one article the 
party is found guilty by two-thirds of the Senate, he is de¬ 
clared acquitted by the President of the Senate. If guilty, 
the Senate proceed to fix and declare the punishment. 

§ 72. Section 4Tn. 1st clause. The times, places, 
and manner of holding elections for senators and repre- 
sentatives shall be prescribed in each state by the Legis¬ 
lature thereof; but the Congress may, at any time, by hue, 
male or alter such regulations, except as to the places of 
choosing senators. 

§ 73. Under this section Congress has the power to 
appoint the ihnes nm} modes of choosing representatives 
and senators. This power they have never exercised, 
and the time and mode of choosing them is consequently 
very various. In some states, as New-York and Ohio, 
members of the House of Representatives are chosen 
in the year previous to the dissolution of Congress; in 
others, as Nev/-Hampshire and Virginia, in the spring 
following; and in others again, as in Indiana, in the 
following summer. Congress has, except on two occa¬ 
sions, met on or about the first Monday in December; 
but suppose, that from the emergency of the case, they 
should appoint a day early in the spring; in what man¬ 
ner would those states now electing representatives in 
the summer, be represented ? The power of regulating 
the times and places of electing representatives, was thus 
given to Congress, in order that it might have the means 
of its own preservation; otherwise, the states might 
prevent an election. 


5 * 


54 


CONSTITUTION OF 


§ 74. 2d clause. The Congress shall assemble at 
least once in every year; and sueh meeting shall he on 
the first Monday in Deecmber, unless they shall hy law 
appoint a different day. 

§ 75. This provision was inserted in order to estab¬ 
lish, beyond the possibility of prevention, the annual 
sessions of Congress; the time of meeting within the 
year has been fixed, but Congress may change it, and 
on two or three occasions they have held extra sessions. 

§ 76. Section 5tii. 1st clause. Each House shallhe 
the judge of the elections, returns^ and qualifications of 
its own members; and a majority of each shall constitute 
a quorum to do business; but a smaller number may ad¬ 
journ from day to day, and may be authorized to compel 
the attendance of absent members, in such a manner and 
under such penalties as each House may provide. 

§ 77. Some number must be fixed to constitute a 
quorum; it is here fixed at a majority, upon the general 
principle recognised in all the institutions of the Uni¬ 
ted States, that the majority must govern. If any less 
number were required to make a quorum, the minority, 
by acting in the absence of the majority, might govern; 
and if a larger number were required, the minority 
might prevent legislation by absenting themselves. 

§ 78. The House and Senate regularly appoint com¬ 
mittees on elections, which investigate all contested 
claims to seats, and all doubtful returns, qualifications, 
&c. The committees report to the House, which makes 
the ultimate decision. From this decision there is no 
appeal, and it is obvious there ought not to be, for the 
power could be no where else dodged so safely. 

§ 79. 2d clause. Each House shall determine the 
rules of its proceedings, punish its members for disorder¬ 
ly behavior, and with the concurrence of two-thirds, ex¬ 
pel a, member. 

§ 80. The rules of proceedings enacted are numerous, 
and will be considered in another place. 


THE UNITED STATES. 


55 


§ 81. The power to ‘‘punirli its members for disor¬ 
derly behavior” has been frequently exercised. Thus, 
in 1797, William Blount, a senator from Tennessee, 
was expelled for ‘‘a high misdemeanor, entirely incon¬ 
sistent with his public trust and duty as a senator.” 
His offence was an attempt to seduce an Indian agent 
from his duty, and alienate the affections of the Indians 
from the authorities of the United States. The offence 
was not statutable, nor committed in his official charac¬ 
ter, nor committed during the session of Congress, nor 
at the seat of government. Yet he was expelled from 
the Senate, and afterward impeached.^ 

§ 82. It is, therefore, settled by the Senate, that ex¬ 
pulsion may be for any misdemeanor, though not pun¬ 
ishable by any statute, which is inconsistent with the 
trust and duty of a senator. 

$ 83. Although there is a power enumerated given to 
Congress to punish disorderly behavior, yet there is 
none expressly given to punish contempts. Yet this 
power, being absolutely necessary to the order and 
security of the House, has been adjudged, both by Con¬ 
gress and the Supreme Court, to be a necessary inci¬ 
dent to the powers of Congress. 

§ 84. This power was exercised by the House of 
Representatives in the case of Robert Randall, in 1795, 
for an attempt to corrupt a member. 

§ 85. The same point was solemnly decided by the 
Supreme Court in the case of Anderson vs. Dunn.^ 
One Anderson was committed for a contempt of the 
House, and placed in the custody of the sergeant-at- 
arms. An action of trespass was brought against the 
officer, and the case carried to the Supreme Court. 
That tribunal decided that the House had the power, and 
that it extended no farther than imprisonment, and con¬ 
tinued no longer than the duration of the powder that 
» 2 Story’s Comm. 299. 2 6 Wheaton, 204, 


56 


CONSTITUTION OF 


imprisoned, and consequently terminated with the dis¬ 
solution of Congress. 

^ 86. The same power was exercised in 1800 by the 
Senate in the case of William Duane, who was found 
guilty of a printed libel on the Senate, and punished 
with imprisonment.’ So also by the House of Repre¬ 
sentatives, in the case of Samuel Houston, who assault¬ 
ed a member for words spoken in debate, and was found 
guilty of a contempt, and reprimanded.^ 

§ 87. 3d clause. Each House shall keep a journal of 
its proceedings, and from time to time puhlish the same, 
excepting such parts as may in their judgment require 
secrecy; and the yeas and nays of the members of either 
House, on any question, shall, at the desire of one-ffth of 
those present, he entered on the journal. 

$ 88. The i/ca5 and nays, being the means by which 
the constituents discover the conduct of their represen¬ 
tatives, are often called for and generally granted. No 
important question is agitated upon which the yeas and 
nays are not recorded. This provision is very impor¬ 
tant; for, as the periods of elections are short, the rep¬ 
resentative is constantly held responsible to the people, 
and there is no scrutiny which he dreads more than that 
into his recorded votes. 

§ 89. 4th clause. Neither House, during the session 
of Congress, shall, icithout the consent of the other, ad¬ 
journ for more than three days, nor to any other place 
than that in which the two Houses shall he sitting. 

§ 90. By this provision, it is impossible that either 
House should prevent the progress of business, and each 
has a complete negative on the other. 

$ 91. Section 6tii. 1st clause. The Senators and 
Representatives shall receive a compensation for their 
services, to he ascertained hy law, and paid out of the 
Treasury of the United States. They shall in all cases, 

J Journal of the Senate, March 1800. 

2 Other authorities—1 Dali. Rep. 296. 4 Johns. Rep. 417. 


THE UNITED STATES. 


57 


except treason, felony, and breach of the peace, he 
privileged from arrest during their attendance at the 
session of their respective Houses, and in going to or 
returning from the same; and for any speech or debate in 
either House, they shall not be questioned in any other place. 

§ 92. The compensation allowed by Congress for 
their own service was, and is now, a per diem allov/ance, 
with mileage for the distance traveled, going and return¬ 
ing. Congress, several years since, enacted that each 
member should receive a fixed compensation; thus, in 
fact, making themselves salary officers. This was re¬ 
ceived by the people with so much censure and condem¬ 
nation, that the next Congress was obliged to repeal the 
law. 

§ 93. The privilege from arrest during attendance 
upon legislative business, is derived from the Saxon in¬ 
stitutions. It was the privilege of the members of the 
Saxon Wittenagemot,* or assembly of wise men, and 
thence has descended through all the systems of Eng¬ 
lish and American Law. 

§ 94. The effect of this privilege is, that the arrest of 
a member is unlav-ful, and a trespass for which he may 
maintain his action. He may also be discharged upon 
a writ of Habeas Corpus,^ and the arrest may be punish¬ 
ed as a contempt of the House. 

§ 95. In going to and returning from Congress, ample 
time is allowed, and a little deviation does not take away 
the privilege. 

§ 96. The privilege from arrest takes place by force 
of the election, and before the member has taken his 
seat, or is sworn. 

§ 97. This privilege does not extend io felony, trea¬ 
son, or breach of the peace; and the terms breach of the 
peace being general, have been decided to extend to all 
indictable ofences, as well as those which are only con¬ 
structive breaches of the peace.® 

> 1 Hume, 155. 2 2 Wilson’s Rep. 151. 3 Blackst. Comm. 166. 


58 


CONSTITUTION OF 


§ 98. The privilege of speech and debate does not 
extend beyond the limits of legislative or parliamentary 
duty. Thus, for a speech merely delivered in the 
House, a member cannot be questioned; yet, if he 'pub¬ 
lish the speech, and it contain a libel, he is liable to an 
action for it, as in any other case.' 

§ 99. 2d clause. No Senator or Representative shall, 
during the time for which he teas elected, be appointed 
to any civil ofice under the authority of the United 
States ivhich shall have been created, or the emoluments 
whereof shall have been increased, during such time, 
and no person holding any office under the United 
States shall be a member of either House during his con¬ 
tinuance in office. 

§ 100. The first part of this clause was inserted as 
a safeguard against venality; yet were there really 
any danger from such a source of corruption, it would 
not seem to be prevented by this provisioir; for it extends 
only “during such time,”—the time/or which he was 
elected, which is so short as to leave the full force of 
promised reward beyond it. 

§ 101. The second provision, which prevents office¬ 
holders from holding a scat in Congress, is very unlike 
the Constitution of the British Parliament, by which any 
member of the ministry may hold a seat in the House of 
Commons. By this means there is certainly a degree 
of responsibility on the part of the ministry, which is un- 
felt by the executive officers of our government, who com¬ 
municate with congress only through the details of a 
report, or the columns of a newspaper. The provision 
was inserted, however, for the purpose of preventing 
an undue influence of the government upon the action 
of Congress. 

§ 102. Section 7tii. Clause 1st. All bills for rais¬ 
ing revenue shall originate in the House of Representa- 
1 1 Maule and Selwyn’s Rep. 273. 


TUE UNITED STATES. 69 

fives; but the Senate may propose or concur with amend¬ 
ments, as on other bills. 

§ 103. This provision is borrowed from the British 
Constitution, where the Commons, or Lower House, are 
the exclusive representatives of the people. In the 
United States it has been continued, in consequence of 
the Senators being rather the representatives of the 
state governments than of the people. 

§ 104. Bills for raising revenue do not include every 
bill which brings money into the treasury; for, bills for 
establishing the Post-ojfice, and the Mint, originated in 
the Senate; so also bills for the sale of public lands, 
though directly productive of money, are not included 
in this phrase: its proper meaning is confined to bills to 
levy taxes. 

§ 105. 2d clause. Every bill which shall have passed 
the House of Representatives and the Senate shall, before 
it become a law, be presented to the President of the United 
States; if he approve, he shall sign it; but if not, he 
shall return it with his objections to that House in ivhich 
it shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If, 
after such reconsideration, two-thirds of that House shall 
agree to pass the bill, it shall be sent, together with the 
objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two-thirds of that House 
it shall become a law. But, in all such cases, the votes of 
both Houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall 
be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten 
days (Sundays excepted) after it shall have been presented 
to him, the same shall be jl law, in like manner., as if he 
had signed it, unless the Congress by their adjournment 
prevent its return, in which case it shall not be a law. 

§ 106. The power of the President to return bills 
with his objections has been repeatedly exercised. It 


60 


CONSTITUTION OF 


was exercised, we have seen, by General Washington, 
in respect to the bill fixing the ratio of representation; 
by President Monroe, in 1817, on the Internal Improve¬ 
ment Bill; by President Jackson on the Maysville road, 
the United States Bank, and in other cases. 

§ 107- This power, and the mode of its exercise, arc 
so clearly defined by the Constitution as to admit of lit¬ 
tle doubt or misconception. If the President abuse the 
Veto, it is presumed the representatives of the people 
will pass the bill in question, by the constitutional ma¬ 
jority of two-thirds. 

§ 108. If a bill be not presented to the President more 
lhan ten days before the end of the session, the President 
has it in his power to defeat it, by simply withholding 
his signature, for he is obliged to return it with objec¬ 
tions (if he has any) only within ten days; of course, if 
Congress by adjournment prevent that return within 
that time, the bill must fail, if not signed by the Presi¬ 
dent. 

§ 109- 3d clause. Every order, resolution, or vote 
to ivliich the concurrence of the Senate and House of 
Representatives may he necessary {except on a question 
of adjournment), shall he presented to the President of 
the United States, and before the same shall take effect, 
shall he approved hy him, or, being disapproved by him, 
shall he repassed by two-thirds of the Senate and House 
of Representatives, according to the rides and limita¬ 
tions prescribed in the case of a hill. 

§ 110. The “order, resolution, or vote” to which the 
President’s signature is, by this section, required, are 
not those orders, resolutions, and votes which relate to 
the separate and internal government of each House. 
Rules of order, resolutions in respect to their own con¬ 
duct, judgments upon their own elections, votes of cen¬ 
sure and thanks, being matters exclusively relating to 
themselves, do not come within the scope of this pro¬ 
vision. 




THE UNITED STATES 


61 


$111. Section 8th. Clause 1st. The Congress 
shall have power to lay and collect taxes, duties, imposts, 
and excises; to pay the debts and provide for the com¬ 
mon defence and general ivelfare of the United States; 
but all duties, imposts, and excises shall be uniform 
throughout the United States: 

§ 112. This clause, divided by the semicolon, does 
?iot confer upon Congress two separate powers, one to 
lay and collect taxes,” &c. and the other to “provide 
for the general welfare;” but it is the grant of one pow¬ 
er, viz. “ to lay and collect taxes,” &c.—limited by the 
object, which is for the purpose of “ providing for the 
general welfare.’” 

§ 113. Taxes are of two kinds,-*—direct and indirect. 
Direct taxes are all burthens imposed immediately upon 
tlie person or estate of the citizen; thus, a tax upon 
houses, lands, money, &c. is a direct tax: indirect taxes 
are the burdens imposed upon articles of consumption, 
and chiefly upon imported articles; thus, the revenue, 
or duty levied upon each yard of broadcloth, or cotton 
sheeting, brought to this country from abroad, is an 
indirect tax. 

§ 114. Indirect taxes increase the price of imported 
articles, and thus act as a burden upon those who pur¬ 
chase them. The difference between the two modes of 
taxation is this: direct taxes act directly upon the person 
and property of the citizen, and is independent of his 
ivill; indirect taxes, by being imposed upon articles 
imported from foreign countries, or used in consumption., 
leave the people at liberty to pay them or not, by using 
or not using the articles upon which they are imposed. 
Thus, a farmer cannot avoid the payment of a tax levied 
upon his land, but he may avoid the payment of the 
duty upon coffee, by not using it. And previous to the 

Jefferson’s Opinion on the Bank of the United States, 1791; Mon¬ 
roe’s Message, May, 1822; Hamilton’s Report, Dec. 1791; 9 Whea¬ 
ton’s Rep. 199. 


6 


02 


•CONSTITUTION OF 


Revolution, such was the fact, as we all know, in rela¬ 
tion to the duty upon tea. The people, by a patriotic 
impulse and common consent, abstained from the use of 
tea, and thus prevented the levying of the duty. 

§ 115. In general, all the necessaries of life, such as 
coarse clothing, bread, meat, fruit, wood, and iron, are 
the productions of our own country,—so that the whole 
import duty, or nearly the whole revenue of the country, 
as now levied, is a mere matter of voluntary contribu¬ 
tion upon the part of each and every citizen; hence it 
is that indirect taxes, being in a measure unfelt and vol¬ 
untary, are comparatively popular, while direct taxes 
are more or less odious. 

§ 116. The terms imposts and duties, as now used, 
are nearly synonymous;* but originally, the word duty 
had a general signification, as it respects taxes, of which 
imposts was a particular application. Now they are 
applied indiscriminately to the revenue obtained from 
imported articles. 

§ 117. The term excise is defined to be a duty on 
commodities, but of late it has been confined to a tax on 
domestic distilled liquors. In this sense it is a tax, not 
only on the productions of the country, but also a tax on 
the manufacture of them: it is a tax, at once, upon the 
raw material and the labor put upon it. Such a double 
duty, it is obvious, could never be imposed by the Legis¬ 
lature, nor borne by any people, but from a conviction 
in a large portion of the community, of the disastrous 
infuence of spirituous liquors, and a strong desire to re¬ 
press their use. Even with this conviction among the 
intelligent, an excise duty has never been imposed but 
in time of great public emergency, and then at the risk 
of civil war. In the year 1793, Congress laid an ex¬ 
cise duty on distilled spirits, and appointed inspectors, 
officers, &:-c. to collect it. This law became so exces¬ 
sively odious to a portion of the people, that notwith- 
> Madison’s Letter on the Tariflf. 


THE UNITED STATES. 


63 


standing the unrivalled popularity and commanding in¬ 
fluence of General Washington, who was then Presi¬ 
dent, they were excited, especially in the neighborhood 
of Pittsburgh, Pennsylvania, into open acts of violence. 
The inspectors were attacked in their houses, the mails 
robbed, the marshal resisted, and numerous other out¬ 
rages, amounting to open insurrection, were committed.* 
At length, the President called out the militia, and by 
the display of superior force, and the determination to 
use it, quelled the insurgents. In this brief history, we 
see the effect of excise duties, of which the chief cause, 
next to the appetite for spirituous liquors, may be found 
in the onerous nature of a tax both upon labor and pro¬ 
duction. 

§ 118. But all duties, imposts, and excises, must be 
uniform. In the case of Hylton vts. United States,^ the 
Supreme Court decided that a duty levied indiscrimi¬ 
nately upon all carriages was not a direct tax, and was 
therefore properly laid, and uniform. Had it been a 
direct tax, it must, according to a previous provision of 
the Constitution, 42), have been apportioned in pro¬ 
portion to the population of the several states. 

§ 119. In the case of Loughborough vs. Blake,® the 
court decided that the power of Congress to tax exten¬ 
ded over the District of Columbia, and all other terri¬ 
tories ; that the power of taxation was co-extensive with 
the government, but that when exercised, direct taxes 
must be in proportion to the population. The court 
decided that Congress were not obliged to extend taxa¬ 
tion to the territories, although when they did so, the 
Constitution gave a rule of assessment. 

§ 120. 2d clause. To borrow money on the credit of 
the United States: 

This power has been constantly exercised, and for 
the plain reason that no state or government could 

I 5 Marshall’s Washington, 585. ^ 3 Dallas, 171. 

3 5 Wheaton, 317. 


64 


CONSTITUTION OF 


subsist without it. Every war, especially under a fru¬ 
gal and economical government like ours, imposes upon 
the government the necessity for greater revenues than 
the ordinary taxes can supply; the consequence is a 
national debt. But the same simplicity and frugality 
which keep the revenue below the lavish demands of 
war, furnish the means of speedily extinguishing the 
debts which result from it. Thus, in our country, the 
year 1816 found the nation more than 120 millions in 
debt; the year 1834,—18 years afterward,—found it 
not only out of debt, but its statesmen actually contend¬ 
ing about the surplus revenue! 

§ 121. Clause 3d. To regulate commerce with foreign 
nations and among the several states, and with the Indian 
tribes: 

§ 122. The power given in this paragraph has been 
the C'rigin of many important legislative provisions, of 
which some- have given rise to judicial decisions, and 
others to frequent and severe political discussions. In 
a very celebrated case. Gibbons vs. Ogden,* arising 
under the Steamboat Laws of New-York, the Supreme 
Court of the United States have solemnly decided the 
meaning of the phrase to regulate commerce. 

§ 123. The term commerce, in that decision, is deci¬ 
ded to comprehend navigation, and the power to regu¬ 
late navigation is as expressly given as if it had been 
added to the word commerce. 

§ 124. The power to regulate commerce extends to 
every spjscies of commercial intercourse between the 
United States and foreign nations, and among the sev¬ 
eral states. But it does not comprehend that com¬ 
merce which is internal, as between man and man, and 
between different parts of the same state. It does not, 
however, stop at the jurisdictional lines of the several 
states, but extends wherever the subject of it exists. 

§ 125. The power to regulate commerce is the 

I 9 Wheaton, 189, 193. 


THE UNITED STATES. 65 

power to prescribe the rule by which commerce is to be 
governed. 

§ 126. The power to regulate commerce extends as 
well to vessels employed in carrying passengers as to 
those in transporting goods, to vessels navigated by lire 
and steam as to those by sails. 

§ 127- The law regulating the coasting trade, in 
relation* to which these decisions were made, was 
passed in February, 1793. From that day to this, 
Congress have been in the constant exercise of the 
power to regulate commerce. They have passed laws 
to regulate commerccj as such, to lay embargoes, navi¬ 
gation acts, &c. 

§ 128. By the Embargo Act, December, 1807, a 
prohibition was laid of exportation from the United 
States, either by land or water, of any goods or wares, 
either foreign or domestic. In the case of the United 
States against the Brigantine William,^ this act was 
controverted, as unconstitutional: but the court decided 
that the embargo act was constitutional; that non¬ 
intercourse and embargo laws are within the range 
of legislative discretion; and that the power of Congress 
was sovereign relative to commercial intercourse, 

§ 129. Within a few years, another question has 
arisen under the power to regulate commerce. Political 
zeal and party spirit have originated an idea, which cer¬ 
tainly, so far as authentic history goes, never entered 
into the heads of the framers of the Constitution. This 
notion is, that a law imposing duties for the protection 
of domestic manufactures is not constitutional. It is ad¬ 
mitted, that any amount of imposts and duties may be 
levied upon any articles for the purpose of revenue, and 
that the protection arising from this impost, being inci¬ 
dental, is constitutional, —bat that these same imposts 
being imposed for protection so called, are not constitu¬ 
tional. This is in reality a distinction without a diffej*^ 

1 '2 Hall’s Law Journal. 255. 

6 * 



ence; for, according to the theory itself, Congress, with¬ 
out transcending their powers, may levy the whole 
revenue from particular articles, and thus create not 
only a protection against, but an absolute prohibition of 
them. But, suppose the bill was enacted for protection 
merely, and let us examine briefly the principles and 
authorities applicable to it. It is neither necessary nor 
proper here to enter into a detailed argument upon the 
subject, but the matter may be stated in a few propo¬ 
sitions with sufficient force to make the conclusion 
irresistible. 

§ 130. The avowed objects the Constitution, as ex^ 
pressed in the preamble, are to provide for the common 
defence, and 'promote the general welfare ; for this pur¬ 
pose various means are provided, and among others the 
express power given “ to lay imposts, duties, and ex¬ 
cises, to provide for the common defence, and promote 
the general welfare.” Now, it is perfectly apparent, 
that neither of these provisions can be carried into 
effect without such discriminating duties as will encou¬ 
rage and protect the domestic manufacture of the muni¬ 
tions of war, and of necessary clothing. 

§ 131. The power to regulate commerce includes 
every thing in relation not only to the mode of carrying 
it on, but also to the te'rms upon which it shall be carried 
on.^ Those terms, therefore, may be arranged either for 
the purpose of raising revenue or protecting manu¬ 
factures, as suits the legislator. The government has 
a discretion, which it may exercise as it pleases. 

§ 132. The meaning of the phrase, to regulate trade, 
must be gathered from the use of it among commercial 
people, and the manner in which it was understood by 
those who used it in making and adopting the Constitu¬ 
tion.^ In both these cases it was understood to include 
the encouragement of manufactures. 

§ 133. The Supreme Court is vested with power to 

* Madison’s Letter on the Tariflf. 


8 Ibid. 


• THE UNITED STATES. 


67 


decide on the constitutionality of all laws: this point has 
not been directly before them, but they may be consid¬ 
ered as having decided it upon principle, by the appli¬ 
cation of certain rules which they have laid down. • 

§ 134. The court have decided* that the power to 
regulate commerce is the power to prescribe the rule by 
which commerce shall be governed; 

§ 135. That, like all other powers vested in Con^ 
gress, it is complete in itself, and has no other limits 
than such as are prescribed in the Constitution; 

§ 136. That the power to regulate implies in its nar 
ture full power over the thing to be regulated. 

§ 137. Now, if Congress have power to tax all artU 
cles in all modes (as they have, under the clause to lay 
duties, imposts, &.C.), and have besides the power to 
regulate commerce without limitation as to the subject 
matter, then it is impossible to avoid the conclusion, that 
they have the power to make any discrimination whatev¬ 
er, in the duties to be levied, no matter for what purpose, 
whether of revenue or protection, is answered thereby. 

§ 138. But if any thing were wanting to make con¬ 
viction perfect, it would be found in the uniform practice 
of the government, whether administered by those who 
were co-laborators in its formation, or by those who 
grew up under it from the adoption of the Constitution 
to the present day; in the opinions often expressed, of 
the wisest and most distinguished statesmen; and final¬ 
ly, in the admissions of the ablest opponents of the pro¬ 
tective policy. 

§ 139. The power to regulate commerce is exclusive 
in the general government.^ The full power to regu¬ 
late a particular subject implies the whole power, and 
leaves no residuum. A grant of a power to regulate 
necessarily excludes the action of all others, who would 
perform the same thing. 

1 Gibbons vs. Ogden, 9 Wheaton, 189. 

2BFOvvn w. Marylfind, 12 Wheaton, 419, 445. 


68 


CONSTITUTION OF 


§ 140. The power to regulate trade and commerce 
extends to the coasting trade and fisheries, within or 
without a state, wherever it is connected with other 
states, or with foreign nations; it extends to the 
regulation and government of American seamen on 
board of American ships, and to conferring 'privi¬ 
leges upon American ships in domestic as well as foreign 
traded 

§ 141. It extends also to quarantine, pilotage, and 
salvage laws; to the construction of light-houses; to the 
removal ofi ohstructions in creeks, harbours, and sounds; 
and to the establishment of ports of entry for the pur¬ 
poses of foreign commerce. 

§ 142. These powers have all been exercised in the 
enactment and enforcement of various laws regulating 
the collection of the revenue, the government of sea¬ 
men, the mode of navigation, and the improvement of 
harbours. 

§ 143. This section of the Constitution contains also 
the power, which has been often exercised, of regulat¬ 
ing intercourse with the Indian tribes. The Supreme 
Court have decided^ that Congress have the exclusive 
right of pre-emption to all the Indian lands within the 
territories of the United States. This right the United 
States have constantly exercised; neither the states 
nor any individuals are allowed to purchase lands from 
the Indians. 

§ 144. In the case of the Cherokee Nation vs. Geor¬ 
gia,^ it was decided that a tribe, situated within the ter¬ 
ritorial limits of a state, but exercising the powers of 
government and national sovereignty, under the guaran¬ 
tee of the general government, is not a foreign state in 
the sense of the Constitution; but is entitled to sue in 
the courts of the United States. Such a tribe is to be 
deemed politically a state, that is, a distinct political so- 

* 2 Story’s Comm. 518. • ^2 Wheaton, 543; 6 Cranch, 142. 

3 5 Peters’ R. 1,16, 17. 9 Wheaton, 203, 209. 


THE UJVITED STATES. 


69 


ciety, but is not a foreign state.' It is a domestic de¬ 
pendent nation, and is to be deemed in a state of pupil¬ 
age. Its relation to the United States is that of a loard 
to a guardian. 

§ 145. As it respects foreign nations, the Indian 
tribes within the limits of the United States are con¬ 
sidered as completely within the control and protection 
of the United States; so that the interference of any 
foreign nation with those Indian tribes, or an attempt 
to seduce their good-will from the United States, would 
be considered as a cause of war. 

§ 146. 4th clause. To estahlish a uniform rule of 
naturalization, and uniform laws on the subject of bank¬ 
ruptcies throughout the United States. 

§ 147. This provision vests the power of naturaliza¬ 
tion exclusively in the United States. ^ In pursuance 
of this power. Congress have passed a series of laws 
prescribing the mode of naturalization. Of the classes 
of persons who may come under these provisions there 
are three, —1st, Aliens of full age; 2d, Aliens, minors; 
3d, Children of citizens born in foreign countries. 

§ 148. l5#. The' laws provide® that any alien of full 
age shall be admitted to citizenship in the following man¬ 
ner. 1st. He shall declare on oath, or affirmation, be¬ 
fore any court of record, having common law jurisdic¬ 
tion, a seal and a clerk, in any state or territory, or a 
circuit or district court of the United States, or before 
the clerks thereof, tico years at least before his admis¬ 
sion, that it is bona fide his intention to become a citi¬ 
zen of the United States, and renounce for ever all alle¬ 
giance to any foreign prince or state of which he may at 
the time be a citizen or subject. 2d, That he shall, at 
the time of his application to be admitted, declare on 
oath, before the aforesaid courts, that he will support the 

1 Worcester vs. Georgia, 6 Peters, 559. ^ 2 Wheaton, 259, 269. 

s Act of April, 1802, as amended by the acts of 1804, 1813, 1816, 
1824, and 1828. 


70 


CONSTITUTION OF 


Constitution of the United States, and does absolutely 
renounce and abjure all allegiance to any foreign prince 
or state whatever; and particularly that prince or state 
whereof he was before a citizen or subject, which pro¬ 
ceeding shall be recorded by the clerk of the court. 
3d, That the court admitting such alien shall be satis¬ 
fied that he had resided within the United States the 
continued term office years next preceding his admission, 
without being during that time out of the United States, 
and one year at least within the state or territory where 
such court is held; and that, during that time, he has 
behaved as a man of good moral character, attached to 
the principles of the Constitution, and well disposed to 
the good of the same,—provided the oath of the ap¬ 
plicant shall not be allowed to prove his residence. 
4th, That if the alien applying to be admitted shall have 
borne any hereditary title, or been of any of the orders 
of nobility in Ihe kingdom or state whence he came, he 
shall, in addition to those requisites, expressly renounce 
his title or order of nobility, in the court to which his 
application shall be made, and it shall be recorded; 
provided, no alien who shall be a citizen or subject of 
any country at war with the United States at the time 
of his application, shall be admitted as a citizen of the 
United States. 

§ 149. 2d. Free white minors,^ who have resided in 
the United States years next preceding iheiv oxyiwtiI 
at twenty-one years, and who shall have continued tore- 
side therein till the time they may make application, may, 
after their arrival at twenty-one years of age, and after 
they shall have resided in the country fixe years, within 
the United States, including three years of their minority, 
be admitted without having made the declaration first re¬ 
quired ; provided they shall make such declaration at the 
time of their admission, and shall further declare on oath, 
and prove to the satisfaction of the court, that for three 
1 Act of May, 1824. 


THE UNITED STATES. 


71 


years next preceding, it has been the bona fide intention 
of such alien to become a citizen of the United States, 
and shall otherwise comply with the laws relative to 
naturalization. 

§ 150. The children of naturalized persons, or of 
those who have become citizens previous to the passage 
of any law upon the subject, and were under twenty- 
one at the time of their parents’ admission to citizen¬ 
ship, shall, if dwelling in the United States, be consid¬ 
ered citizens of the United States. 

§151- 3d, The children of those who now are or have 
been citizens of the United States shall, though born out 
of the limits and jurisdiction of the United States, be 
considered as citizens; provided the children of those 
who have never resided within the United States shall 
not be so considered. 

§ 152. And it is further provided,^ that if an alien 
make the declaration in the first condition, and pursue 
the other requisitions as far as may be, and die before 
he is actually naturalized, the widow and children shall 
be considered as citizens, and entitled to all the rights of 
citizens, upon taking the oaths prescribed by law. 

§ 153. An alien is, by the Common Law,^ without 
power to hold real estate. Several of the western 
states, as Ohio, &-c., have abrogated this part of the 
common law by statute, for the encouragement of emi¬ 
gration. 

§ 154. The power to pass a general Bankrupt Law is, 
by this section, vested in Congress. This power was 
once exercised by Congress in April, 1800; but the law 
was repealed in 1803. Many efforts have been made 
since to obtain from Congress a general Bankrupt Law; 
but, in consequence of a disagreement upon the details, 
none has been passed. The sev^eral states have fre¬ 
quently passed Insolvent Laws; but as another part of 
the Constitution, of which we shall speak hereafter, ren- 
» Act of March, 1804. * 2 Blackstone’s Comm. 249, 293. 


72 


CONSTITUTION OF 


ders all acts impairing the obligations of contracts void, 
there has been much doubt as to the constitutionality 
and effect of these laws. 

§ 155. The Supreme Court have now determined, by 
a series of decisions the following points 

1st. That State Insolvent Lav/s cannot discharge the 
obligation of antecedent contracts; 

2d. That the power of Congress to pass Bankrupt 
Laws is not an exclusive grant; it may, therefore, be ex¬ 
ercised within constitutional limits by the states; 

3d. That a state may pass valid laws discharging the 
person of the debtor and his after-acquired property 
from debts contracted after the passing such law; 

4th. That such a discharge is valid only between the 
citizens of the state by which the law was passed; 

5th. That the Insolvent Law of one state does not dis¬ 
charge the debtor from debts, which he has incurred in 
another state. 

§ 156. 5th clause. To coin money, regulate the value 
thereof and of foreign coin, and fx the standard of 
weights and measures. 

§ 157. The power conferred by this paragraph has 
been long and efficiently exercised, so that the Ameri¬ 
can coinage has supplied much of the currency of the 
country, and holds a high rank among foreign nations. 
The Mint of the United States is an office, with 
the proper officers, created by Congress in 1792,^ and 
has been in operation ever since. Every person may 
bring gold and silver to the mint to be coined, and if it 
is of the standard value, is assayed and coined free of 
expense; but if below the standard, enough is retained 
to pay the expense of coinage. The coinage of the 
United States is entirely decimal, and, therefore, in prac¬ 
tice, more convenient than that of any other nation. 
Thus, the Spanish milled dollar is taken as the unit, 

*4 Wheaton’s R. 122; 12 Wheaton’s R. 273. 2 Act of April 

1792. 


THE UNITED STATES. 


73 


and all smaller coin is in tenth parts of that, and all gold 
coin in tens above; as the dime is the tenth part of a 
dollar, and the eagle ten dollars. That part of this 
clause which relates to the standard of weights and 
measures, has never been acted upon,—although nothing 
could conduce more to the accuracy of trade, or the 
convenience of commerce. Several elaborate, and sci¬ 
entific treatises have been produced upon the subject, 
for the information of Congress, among which is the able 
Report of Mr. J. Q. Adams. In the meantime, the pow¬ 
er is sometimes exercised by the states. 

§ 158. 6th clause. To provide for the punishment of 
counterfeiting the securities and current coin of the United 
States; 

Congress have exercised this power by making the 
crime of counterfeiting a felony, punishable by impris¬ 
onment, fine, &c. This power is consequential to the 
preceding,—that of coining money and regulating its 
value. 

§ 159. 7th clause. To establish Post-offices and 
Post-roads; 

The establishment of Post-offices and Post-roads 
has existed since, and before the organization of the 
present government. Being a branch of public admin¬ 
istration co-existent with commerce, social intercourse, 
and the diffusion of knowledge, it has grown with the 
increase of the general prosperity, and has become, 
from small beginnings, an immense and complicated 
machinery. In 1830, the number of Post-offices was 
9000, and the number of miles in Post-roads more than 
20,000; and this number is constantly increasing. 

§ 160. To establish Post-roads and Post offices, 
neans simply to make any given road a post-route^ and 
appoint in any given place a post-master. The routes 
are established by act of Congress, but it is the duty of the 
postmaster-general to appoint postmasters at all such 
^ Act of April, 1806. 

7 



74 


CONSTITUTION OF 


places as he may judge best, and expedite the mail as 
frequently, on established routes, as the public interest 
may require. 

§ 161. The power to establish Post-offices and 
Post-roads being given, the consequential powers neces¬ 
sary to carry it into execution are likewise given; as, 
for example, the power to secure the safety and speedy 
transportation of the mail.^ Congress have accordingly 
made the robbery of the mail a felony, and prohibited, 
under high penalties, the obstruction of the mail. Under 
this act the Supreme Court^ have decided, that even a 
stolen horse, found in the mail stage, could not be 
seized, and that the driver could not be arrested on civil 
process in such a way as to obstruct the mail. But 
it was subsequently decided, that this was not to be 
carried so far as to endanger the public peace by inter¬ 
fering with criminal process^ Thus, a felon may be ar¬ 
rested in the mail stage, or the driver, if he had commit¬ 
ted murder. 

§ 162. Under the power to establish Post-roads has 
arisen the question of Internal Improvements. Though 
much agitated, it is not settled, and I shall give here 
merely the different authorities upon the subject, whether 
Legislative, Executive, or Judicial. 

§ 163. l5i. Of the Legislative opinions upon the sub¬ 
ject. By the Act of March 3d, 1803, Congress con¬ 
cluded a compact with the state of Ohio, by which 
three per cent, of all the moneys derived from the sale 
of public lands within the State of Ohio were reserved 
for the construction of roads within that state. The 
consideration was, that the lands of the United States in 
that state should not be taxed. Whether by inadver¬ 
tence or intention, this act clearly acknowledged the 
power of the general government to make Internal Im¬ 
provements; for the appropriation was made by the 

^Act of April, 1810. ^3 Hall’s Law Journal. 

»1 Peters’ Rep. 390. 


THE UNITED STATES. 


75 


United States, and the funds were derived from the prop¬ 
erty of the United States. It could be no objection to 
this reasoning that the work was to be done by the 
state; for it is an established principle, that «he who 
acts by another, acts by himself.” Neither is it an ar¬ 
gument to say there was a consideration; for, what 
one cannot do directly he cannot do indirectly.” This 
was so understood by Congress, for in several subse¬ 
quent acts they authorized the construction of roads 
within the North-west Territory. 

§ 164. The next step taken by Congi’ess* was the 
construction of the Cumberland Hoad. This road was 
commenced in 1 806, and in a few years finished from 
Cumberland, on the Potomac, to Wheeling, on the Ohio. 
In 1820, Congress resumed the construction from Wheel¬ 
ing westward, and it is now in progress through the 
western states. This work was undertaken on the 
ground of the compact with Ohio. By the terms of a 
compact made between that state and the United States, 
jive per cent, of all the moneys arising from the sale of 
public lands within that state were to be applied to the 
making of roads leading from the navigable waters of 
the Atlantic to the Ohio.” This, however, falls within 
the same principles already stated, in reference to the 
three per cent, fund; and as the sum drawn from the 
reserved funds was soon greatly exceeded, the work has 
since been conducted simply on the ground of internal 
improvement. 

§ 165. The next act^ was the opening of the road 
from Athens, in Georgia, to New-Orleans, and from 
Nashville to Natchez. In 1809, the Canal of Caronde- 
leP was extended to the Mississippi by the general 
government. 

§ 166. In 1811, Congress directed^ the survey and 
making of two roads,—one from the Rapids of the 

> Act of March, 1806- 2 Act of April, 1806. 

3 Act of February, 1800 ^ Act of December, 1811. 


76 


CONSTITUTION OF 


Maumee to the Western Reserve, and another from 
Sandusky to the Greenville Line. 

§ 167. By several successive acts in 1812, 1816, 
1817, and 1818, Congress confirmed their former de¬ 
cisions, by making surveys of, and authorizing the con¬ 
struction of roads ; till it would seem that, practically, 
there was no doubt in the National Legislature upon the 
subject. The matter has, however, been several times 
tested by the interposition of the Executive Veto. 

§ 168. A bill to set apart a portion of the bank bonus 
and dividends for the purpose of Internal Improvement 
was passed in 1817, and returned by Mr. Madison, 
who denied the power of Congress to construct roads 
and canals, or improve water-courses. The House of 
Representatives, however, re-affirmed their power by a 
vote of sixty to fifty-six. 

§ 169. At the succeeding session, Mr. Monroe, in his 
message, also denied the constitutional power of Con¬ 
gress to make Internal Improvements. The House soon 
after passed a resolution, ninety to seventy-five, declar¬ 
ing that Congress, under the Constitution, had power to 
construct roads and improve water-courses. 

§ 170. From this period Internal Improvement seem¬ 
ed the settled policy of the government for several years. 
In 1822, Mr. Monroe, indeed, interposed his veto on 
the bill providing for the Collection of Tolls on the 
Cumberland road; but, the objection was not to the 
power of making roads, but to the Collection of Tolls 
upon it, as being inconsistent with the jurisdiction and 
sovereignty of the soil. This, however, was not deemed 
an impediment to the construction of public works, for 
Congress immediately took measures to organize a sys¬ 
tem of surveys and reports, in relation to such roads and 
canals as the public interest might require; and in April, 
1824, what is called the Survey Bill became a law. 
It appropriated .$30,000 for the purpose of making sur¬ 
veys of different parts of the country, and authorized 


THE UNITED STATES. 


77 


the employment of the Engineer Corps in that service. 
Soon after the passage of this bill, the accession of a 
new administration, decidedly favorable to Internal Im¬ 
provement, gave the system a new impulse, and from 
that time forward Congress enacted many laws affirming 
and enlarging these powers. They subscribed a large 
amount of stock to the Ohio and Chesapeake Canal, 
to the Dismal Swamp Canal, and the Louisville and 
Portland Canal. They made appropriations for the 
improvement of numerous harbours, rivers, &c. &c.,— 
for the making of Military Roads,—for the continuance 
of the Cumberland Road, and various other public 
works. A practical check was given to this system by 
President Jackson, in his veto on the Maysville Road 
Bill, of which I shall speak hereafter. Congress, how¬ 
ever, remained unchanged. By the passage of the 
Harbour Bills, and numerous other items for roads and 
improvements in other bills, they have manifested a 
fixed opinion in favor of their power to construct roads 
and other public works, 

§ 171. The result deduced from this Legislative 
History is, that Congress have uniformly asserted their 
power, under the Constitution, to eonstruct and hold, 
with the public funds, public worhs, under the denomi¬ 
nation of Internal Improvements. We shall now exam¬ 
ine the opinion of another branch of the government. 

§ 172. 2tl. Of the Executive opinions. During the 
administration of Washington and the elder Adams, the 
power of Congress in respect to Internal Improvements 
was neither exercised nor much examined, and there¬ 
fore no executive opinions were formally advanced. 
Under the administration of Mr. Jefierson, we have 
already seen the compact was made with Ohio, and the 
Cumberland Road undertaken. To both these acts 
Mr. Jefferson gave his assent, and it is difficult to see 
in what respect these M^orks differ from other public im¬ 
provements; yet, by his message of December 2d, 1806, 

7^ 


78 


CONSTITUTION OF 


he denied the power of Congress to make roads and im¬ 
prove water-coLirseSj though he earnestly recommended 
the grant of such powers by the states. The reason 
given was, that this power was not enumerated among 
the powers of Congress. The authority of Mr. Jeffer¬ 
son, therefore, may be considered as decidedly against 
the power to make internal improvements, though he 
was most earnestly in favor of granting such a power 
to the government. 

§ 173. Mr. Madison, in 1796, spoke in favor of a 
resolution relative to a survey of a road from Maine to 
Georgia; yet, in 1815, in his Message to Congress, 
while strongly recommending to Congress “ the great 
importance of establishing throughout our country the 
roads and canals which can best be executed under 
national authority,” intimated that any defect in the con¬ 
stitutional poicer might be supplied in the mode provi¬ 
ded by the Constitution. 

In 1817, Mr. Madison placed his Veto upon the bill 
providing means for the construction of roads and 
canals, and the improvement of water-courses. He de¬ 
nied the constitutional power of Congress to make such 
works, and thus gave his judgment also in the negative. 

§ 174. In Mr. Monroe’s first message to Congress,^ 
he declared his agreement with his predecessors, and 
doubt of the constitutionality of such works. After the 
passage of the Resolution of Congress, in 1818, affirm¬ 
ing the power, he is understood to have withdrawn his 
opposition, and during his administration, appropriations 
for such purposes greatly increased. In 1822, however, 
he placed his vcto^ upon the act for the erection of Toll- 
gates and the collection of Tolls on the Cumberland 
Road. This he considered as requiring the juris¬ 
diction and sovereignty of the soil, which the general 
government did not possess. 

§ 175. Mr. John Quincy Adams strongly recom- 
» December, 1817. 2 May, 1822. 


THE U:\ITED STATES. 


79 


mended and encouraged Internal Improvements. Dur¬ 
ing his administration, the system seemed to have be¬ 
come a part of the permanent policy of the country. 
Numerous surveys were completed, and large sums ap¬ 
propriated for various public works. 

§ 176. General Jackson, while a member of the 
Senate, is understood to have had no constitutional 
scruples upon the subject; but, by his veto upon the 
well-known JVIaysville Road Bill,^ he gave his influence 
in the negative. In whatever manner this document 
may be judged of, during the heat of temporary party 
controversies, there can be no doubt that it contains a 
temperate and judicious review of the question, and a 
correct decision upon the particular point submitted to 
him. That point was, the propriety of constructing by 
the general government a local road entirely u'ithin one 
state. There is no doubt that if the power of making 
Internal Improvements exist in the general government, 
it must be confined to national, not local objects. 
General Jackson, however, went further than this, and 
deemed that all the power which had been uninterrup¬ 
tedly exercised upon this subject, viz. that of appropri¬ 
ating money, was insufficient and unsafe for the success- 
fid prosecution of national M orks. He regarded it, 
notwithstanding the usage was admitted, as improper to 
exercise powers not granted, and which might easily be 
conferred. 

§ 177. Since this message, the Executive influence 
has been altogether opposed to Internal Improvements, 
and they have made little progress. 

§ 178. We have now seen that the opinions of 
Presidents Jefferson, Madison, Monroe, and Jackson 
were opposed upon constitutional grounds to the exer¬ 
cise of such a power by the general government; but 
that all of them, except the latter, were in favor of the 
measures themselves, and under all their administra- 
* Message, 27th May, 1830. 


80 


CONSTITUTION OF 


tioiis, except also the last, many national works were 
undertaken. President Adams alone conceded both the 
theory and practice. 

The conclusion of the whole then is, that the weight 
of Legislative authority has been uniformly in favor of 
the power, while that of Executive authority has been 
against it. 

§ 179. 3<i. Of Judicial opinions we have none ex¬ 
cept general decisions upon the indirect powers of Con¬ 
gress. 

The Supreme Court decided, that a contemporary 
exposition of the Constitution practised, and acquiesced 
in for a number of years, fixes the construction of the 
Constitution, and the court will not shake or alter it.^ 
Also, that there is nothing in the Constitution of the 
United States which excludes incidental or implied 
powers. 2 

The two principles here cited might be considered as 
showing an inclination in the Supreme Court to sustain 
the power claimed by Congress. Yet, as it may be long 
before the question will come before that tribunal, it 
may be considered as open to discussion. 

§ 180. Clause 8th. To promote the progress of sci¬ 
ence and the useful arts, by securing, for limited times, 
to authors and inventors, the exclusive right to their 
respective ivritings and discoveries: 

§ 181. In England it was solemnly decided,^ that an 
author had, by Common Law as well as by Statute, an 
exclusive right to his own works. In this country. 
Copy-rights and Patent-rights are derived from Acts of 
Congress, founded on this provision of the Constitution. 

§ 182. The acts'* relative to Patents, direct that 
« Patents may be obtained for any new and useful art, 
machine, manufacture, or composition of matter not 
known before the application.” The term for which a 

»1 Cranch, 299. 2 4 Wheaton, 316. 3 4 Burrows’ Rep. 2303. 

^ Acts of February, 1793, and April, 1800. 


THE UNITED STATES. 


81 


Patent may be obtained is fourteen years. Such a law 
would seem to be an effectual protection to inventors 
against an infringement of their rights, yet we may see 
in the Life of Whitney* of how little avail it is against 
the pressing interests of society. In Georgia, no jury 
could be found to give him a verdict of damages for the 
open violation of his Patent for the Cotton Gin,—an 
invention which had doubled the value of cotton! 

§ 183. Copy-rights were formerly secured for/b^r- 
teen years; now, by the Act of February, 1831, in every 
respect better than the former, the term is prolonged to 
twenty-eight years, and at the expiration of that time, he 
(or, if he be dead), his wife or children, may renew it 
for fourteen years longer. 

§ 184. Clause 9th. To constitute tribunals inferior 
to the Supreme Court: To define and punish piracies 
and felonies committed on the high seas, and offences 
against the Law of Nations: 

§ 185. In another place we shall consider what re¬ 
lates to the Supreme and Inferior Courts. 

By the Law of Nations, and by the Common Law, 
Piracy is defined to be —robbery on the high sea, that is, 
the same crime which, when committed on the land, is de¬ 
nominated robbery."^ Piracy is against all nations, and 
punished by all. A plea which would be good in one 
civilized state, would be good in all. 

An alien under the sanction of a national commission, 
cannot commit piracy while he pursues his authority 
Hence, the Barbary states are regarded as lawful pow¬ 
ers, and not pirates. 

§ 186. Felony, at Common Law, comprises every 
species of crime which occasions the forfeiture of lands 
and goods. These, under the English Law , were most 
crimes punishable with death, such as murder, forgery, 
theft, &c. But this does not include all offences on the 

I See Sillirnan’s Journal. ^ Blackst. Comm. 71, 72. 

3 1 Kent’s Comm. 176, 


82 


CONSTITUTION OF 


high seas; for example, Lord Coke says that 'piracy is 
not felony, because punishable by the civil and not the 
common law. 

§ 187. The High Seas means all the waters of the 
ocean, whether within the territorial boundaries of a 
foreign nation or of a domestic state.* 

Between high-water mark and low-water mark, where 
the tide ebbs and flows, the Common Law and the Ad¬ 
miralty hold alternate jurisdiction; one upon the water 
when it is full sea, the other upon the land when it 
is ebb. 

The high seas, here defined, however, do not extend 
to creeks and inlets, but, as it respects the states, means 
that part of the ocean which washes the sea-coast, and 
is not included within any county. 

§ 188. Congress, by various enactments, have exer¬ 
cised the powers vested in them by this section, and 
have affixed various punishments to the crimes of trea¬ 
son, murder, robbery, piracy, &c. 

§ 189. Congress has power to provide for the pun¬ 
ishment of offences committed by persons serving on 
board a ship of war of the United States, wherever that 
ship may be: but Congress has not exercised that po\v- 
er in the case of a ship lying in the waters of the 
United States.2 

§ 190. Clause 10th. To declare war, grant letters of 
marque and reprisal, and make rules concerning captures 
on land and ivater: 

§ 191. These powers are attributes of sovereignty; 
they are vested in the national government, and not in 
the states. The power of declaring war is the highest 
which the government possesses, and involves directly 
the happiness and existence of the people: as it is called 
the last resort of kings, so it is certainly the last appeal 
of nations. 

§ 192. To grant letters of marque and reprisal is 
1 5 Wheaton’s Rep. 184, 200, 204. 2 3 Wheaton, 336. 


THE UNITED STATES. 83 

but a part of the power to declare war; for such an act 
would unquestionably produce war. 

§ 193. The power of “making rules concerning cap¬ 
tures on land and water,” which is superadded in the 
Constitution to that of declaring war, is not confined to 
captures which are extra-territorial, but extends to rules 
respecting enemies’ property found within the territory, 
and is an express grant to Congress of the power of 
confiscating enemies’ property found within the territo¬ 
ry at the declaration of war, as an independent power, 
not included in that of declaring war.* 

§ 194. Clause 11th. To raise and support armies, 
hut no appropriation of money to that purpose shall he 
for a longer term than two years: 

§ 195. The United States have always had a small 
standing army, to keep up the forts on the sea-board and 
awe the Indians. The provision preventing an appro¬ 
priation for a longer period than tico years was for the 
obvious purpose of keeping the standing army always 
within the immediate control of the people, 

§ 196. Clause 12th. To provide and maintain a 
navy: 

This, like the provision to maintain an army, is a con- 
, sequence of the general power to declare war, and is 
absolutely necessary to national existence. The United 
States have long had a respectable navy, and all the 
provisions necessary to its organization, support, and 
increase, have been provided for by law. 

§ 197. Clause 13th. To make rules for the govern¬ 
ment and regulation of the land and naval forces: 

Congress have established, by law, rules and articles 
of war for the government of the army,^ and rules and 
regulationa for the government of the navy.® These 
rules provide for the discipline of the service, the mode 
of trial, and the punishment for offences. The rules 
and articles of war must bo read at the head of each 
» 8 Grand), 110. * Act of April, 1806. * Act of April, 1800. 


84 


CONSTITUTION OF 


corps every six months, and are to govern as well the 
militia in service as the regulars, but the militia are to 
be tried by their own officers. 

§ 198. Whatever crimes are committed on board of 
public ships of war of the United States, whether in port 
or at sea, are exclusively cognizable and punishable by 
the government of the United States.^ The public ships 
of sovereigns, wherever they may be, are deemed to be 
extra-territorial, and enjoy the immunities from the 
local jurisdiction belonging to their sovereign.^ 

§ 199. Clause 14th. To provide for calling forth the 
militia to execute the laws of the Union, suppress insur¬ 
rections, and repel invasions: 

Clause 15th. To provide for organizing, arming, and 
disciplining the militia, and for governing such part of 
them as may he employed in the service of the United 
States, reserving to the states respectively the appoint¬ 
ment of the officers, and the authority of training the 
militia aceording to the discipline prescribed by Con¬ 
gress: 

§ 200. Upon these two provisions, and a subsequent 
one, that the President shall be commander-in-chief of 
the militia when called into actual service, rest the 
whole power of the national government over the militia. 
Upon two occasions only has the power to “call forth 
the militia to execute the laws, suppress insurrections, 
and repel invasions,” been exercised,—one the insur¬ 
rection in Pennsylvania in 1794, the other to repel the 
invasion of the enemy during the war of 1812. Some 
serious questions have arisen under this power. In 
consequence of a requisition made by President Madison 
on the governors of Massachusetts and Connecticut for 
their quotas of militia, a question arose between the 
general and state governments in relation to this power. 
In that and following discussions, these questions were‘ 
made: 

» United States vs. Bevaus, 3 Wheaton, 336. 


* Idem. 


THE UNITED STATES. 


85 


1. Who is to determine ichen the exigency pointed 
out by the Constitution has happened? 

2. Whether the President can place the militia under 
the command of any one but himself? 

3. Whether he can detach parts oi the militia corps? 

§ 201. On the first question, the governors of Con¬ 
necticut, Massachusetts, and Rhode Island, with the 
Supreme Court of Massachusetts, held^ that the govern¬ 
ors of the states were to judge lohen the exigency con¬ 
templated by the Constitution had happened. This 
doctrine, however, was denied by President Madison in 
his Message to Congress, and the question has since 
been solemnly settled^ by the Supreme Court of the 
United States. It was then settled that the authority 
to decide belongs exclusively to the President. The 
act of 1795, providing for the mode of calling out the 
militia, was framed on this principle. The law con¬ 
templates that, in certain exigencies, orders shall be 
given to carry the powers into effect, and no person can 
have a right to disobey them. No provision is made 
for an appeal from, or review of, the President’s opin¬ 
ion. And whenever a statute gives a discretionary 
power to any perfeon, to be exercised by him upon his 
own opinion of certain facts, the general rule of con¬ 
struction is, that he is thereby constituted the sole and 
exclusive judge of the existence of those facts.® 

§ 202. The power io govern the militia, when in the 
service of the United States, is an exclusive one; for any 
such power concurrent in other authorities would destroy 
all unity of action and command. 

§ 203. There is nothing in the Constitution to pro¬ 
hibit a state from calling forth its own militia to assist 
the United States, when that militia is not in the ser¬ 
vice of the United States, to suppress insurrections and 
repel invasions. Such a concurrent exercise of power 

* Martin vs. Mott; 12 Wheaton’s Rep. 30, 31. 

8 1 Kent’s Com. 245, 246. . ^ 12 Wheaton, 19, 31, 32. 

8 


86 


CONSTITUTION OF 


does not interfere with, or obstruct the exercise of, the 
powers of the Union. 

§ 204. Upon the questions whether the President 
can delegate his authority, or detach parts of the militia 
corps, different opinions have been advanced by the 
state and national authorities. Thus, Connecticut and 
Massachusetts, during the war, asserted that he could 
not; President Madison, that he could. The latter 
seems the general opinion, and is certainly most conso¬ 
nant to reason. 

§ 205. By the act of May, 1792, Congress provided 
for the organization, arming, and disciplining of the 
militia. By that act, directions were given as to the 
mode in which the President was to give his orders; 
and refusal or neglect to obey them was declared a 
public offence, and the mode of trial, by court-martial, 
was pointed out. In relation to this act, the Supreme 
Court have decided,* that the militia, when called into 
actual service, were not to be considered in that service^ 
or as national militia, till they were mustered at the 
place of rendezvous; and that until then, the state retain¬ 
ed a right, concurrent with the government of the Uni¬ 
ted States, to punish their delinquency. If the militia, 
when called into the service of the United States, refuse 
to obey the order, they remain within the military con¬ 
trol of the state, and it is competent for the state to pro¬ 
vide for trying and punishing them by a state court- 
martial. 

§ 206. In addition to the act of 1792, Congress have 
passed several other acts upon this subject. In Feb¬ 
ruary, 1795, a law was passed, calling forth the militia, 
in contemplation of the well-known Whiskey Insurrec 
tion. In May, 1820, they passed an act providing that 
the system of discipline observed by the militia through 
out the United fetates should be the same as observed 
by the regular army. 

1 Huston vs. Moore; 5 Wheat. Rep. 1. 


THE UNITED STATES. 


87 


§ 207- A court-martial that imposes a fine upon a 
man not liable to militia duty are tresspassers, as well 
as the officer who distrains for such fine.V 

§ 208. Clause 16. To exercise exclusive legislation in 
all cases whatsoever, over such district (not exceeding ten 
miles square) as may, by cession of particular states, and 
the acceptance of Congress, become the seat of govern'- 
ment of the United States, and to exercise like authority 
over all places, purchased by consent of the Legislature 
of the state, in which the same shall be, for the erection 
of forts, magazines, arsenals, dock-yards, and other 
needful buildings; And 

Clause ] 7. To make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution 
in the government of the United States, or in any depart¬ 
ment or officer thereof. 

§ 209. In pursuance of the power to exercise exclu¬ 
sive jurisdiction, &c. &c., Congress, in July, 1790, ac¬ 
cepted of a grant from Virginia and Maryland, of ten 
miles square, on the Potomac, for the seat of govern¬ 
ment, which is the present District of Columbia. Over 
this territory Congress have exclusive jurisdiction, and 
exercise all legislative powers. 

§ 210. The jurisdiction over various other sites, as 
West Point, &c., has been granted by the Legislatures 
of the respective states in which they lie, for military 
and naval purposes. 

§ 211. The power to exercise exclusive jurisdiction 
includes the power to tax.^ 

§ 212. Congress have the power of general well 
as local jurisdiction, in reference to acts committed 
within that jurisdiction.® 

§ 213. The states cannot take cognizance of any acts 
done in the ceded place after the cession ; and, on the 

1 3 Cranch, 331. * 5 Wheaton’s Rep. 317. 

3 1 Kent’s Comm. 403; 6 Wheaton, 426. 


88 


. CONSTITUTION OF 


Other hand, the inhabitants of those places cease to be 
inhabitants of the states, and can no longer exercise any 
political rights under the laws of the state,* 

But there is commonly reserved by the states a right 
of executing criminal process within the limits of ceded 
places, and this may be exercised in perfect consistency 
with the right of jurisdiction on the part of the United 
States. 

§ 214. The clause giving Congress power to make 
all laws which shall be necessary and proper to carry 
the foregoing into execution, has given rise to more 
diversity of sentiment, discussion, and controversy than 
any other in the Constitution. The reason is obvious; 
about the direct provisions of that instrument, men of 
ordinary comprehension could have but little difference 
of opinion; but as to what is necessary and proper, dif¬ 
ferent men might form very different judgments; so it 
happened; the Constitution had scarcely gone into 
operation under the administration of Washington, w hen 
a radical difference of opinion arose, in relation to the 
charter of the United States Bank. 

§ 215. In 1791,the Secretary of the Treasury recom¬ 
mended the establishment of a National Bank, as neces¬ 
sary to the proper administration of the financial con¬ 
cerns of the nation. A bill for that purpose was intro¬ 
duced into the House of Representatives, and warmly 
opposed on constitutional grounds. Mr. Giles,Mr. Mad¬ 
ison, and Mr, Jackson, of Georgia, were among the op¬ 
ponents of the measure, and Mr. Ames, Mr. Boudinot, 
and Mr. Gerry, among its advocates. The former de¬ 
nied its constitutionality, on the ground that Congress 
could not exercise any powers not expressly granted,— 
that no power was anywhere given to charter a bank, 
—and that, if such implied powers were exercised, 
there would be no limits to the powers of the general 
government.2 Their opponents contended that Con- 

J 3 Story’s Comm, 103; 8 Masach. 72. 2 Elliott’s Debates, vol,4« 


THE UNITED STATES. 


89 


gress had power to pass all laws necessary and proper 
to effect the ends proposed by the Constitution,—that, in 
a confused state of the general currency, such a bank 
was necessary to the power of levying and collecting 
taxes, —and that it was implied in the power to borrow 
money, which also includes the power to lend, and that 
without the exercise of implied powers, the government 
could do nothing. After much debate, the bill passed^ 
both Houses of Congress. The President (Washing¬ 
ton), on receiving the bill, called a cabinet council, in 
which it was again debated. The Secretary of State 
(Mr. Jefferson) and the Attorney-general denied its coiir 
stitutionality, while the Secretaries of the Treasury and 
War (Hamilton and Knox) agreed with the majorities 
in Congress. The President, after deliberation, gave 
it his signature, and the weight of his favorable judg¬ 
ment. 

§ 216. In 1811, the charter of the United States 
Bank expired, and it was not rechartered. In the de¬ 
bate upon the question of its constitutionality, it was 
advocated by Mr. Crawford, and opposed by Messrs. 
Clay and P. B. Porter, upon the same grounds as it had 
formerly been advocated and opposed by Messrs. Ames 
and Madison.2 

§ 217. In 1816, a new bank was chartered, with a 
much larger capital. The currency of the country was 
then in a very depreciated and bankrupt condition. 
The effect of the establishment of the bank was to re¬ 
store a healthy action to the money market, and resus¬ 
citate credit. 

§ 218. In 1832, in anticipation of the expiration of 
the charter in 1836, an application was made for its re¬ 
newal, and the bill passed both Houses of Congress, but 
was rejected by the interposition of the Executive Veto, 
by President Jackson.^ 

* Kent’s Comm. vol. 1, p. 2.34. ® 4 Elliott’s Debates, 268, 276. 

3 Journals of Congress, 1832. 


90 


CONSTITUTION OT 


' § 219. The action of the Supreme Court upon the 
subject has been direct and distinct. In the case of 
McCullough vs. State of Maryland,* that tribunal de¬ 
cided,— 

1st, That Congress has power to incorporate a 
Bank. 

2d, That there is nothing in the Constitution which 
excludes incidental or implied powers; and that if the 
end be within the scope of the Constitution, all the 
means which are appropriate, and are adapted to the 
e7id, and not prohibited, may be constitutionally employ¬ 
ed to carry it into effect. 

3d, That the Bank of the United States has a consti¬ 
tutional right to establish ojices of discount and deposite 
within the states. 

4th, That the states cannot tax the branches: they 
have no right to tax any of the constitutional means 
used by the government to effect constitutional ends. 

5th, That the last rule does not extend to any of the 
real property held by the bank in particular states, nor 
to the proprietary interests of any citizen of that state 
in the bank. 

§ 220. In the case of Osborne vs. Bank of the United 
States,^ the court decided, 6th, That the bank may sue 
in the Federal Courts. 

§ 221. These several decisions gave validity to the 
charter, and the acts of the United States Bank, so 
far as its constitutionality could be established by ju¬ 
dicial authority, it was so. The authorities upon this 
subject stand thus:— Congress passed acts in its favor 
in 1791, 1816, and 1832. On the other hand, in 1811, 
they rejected a bill for its recharter. Of the Executive, 
Presidents Washington, Adams, Madison, and J. Q. 
Adams approved of it; President Jackson alone disap¬ 
proved. The supreme judicial tribunal of the Union 
has given a solemn decision in its favor. The consti- 

14 Wheaton’s Rep. 316. 2 9 Wheaton, 733. 


THE UNITED STATES. 


91 


tutionality of a National Bank is therefoi:c settled, as far 
as it can be, by decision^ precedent^ and authority. The 
expediency of such an institution may at any time be 
questioned by the representatives of the people, and so, 
as a matter of argument or theory, may its constitution¬ 
ality, simply because all things are open to discussion 
at the ultimate tribunal of public opinion; but the exis¬ 
tence of the bank being once supposed, nothing can 
shake its validity while the decisions of the Supreme 
Court remain unimpaired and the Constitution un¬ 
violated. In reference, however, to the decision of the 
Supreme Court, in the case of McCullough, against the 
State of Maryland, it may well be doubted, whether the 
Constitution contains any power to perform any acts 
which are merely appropriate and adapted to the end, as 
stated in the second proposition; for most assuredly an 
act may be appropriate and adapted, —which is not both 
necessary and proper. The constitutionality of the 
United States Bank was maintained by Hamilton and 
others, upon the ground of its necessity to the fiscal op¬ 
erations of the government. 

§ 222. Another incidental power claimed and exer¬ 
cised by the government is to create a priority of pay¬ 
ment in their favor, in case of the death or insolvency of 
the debtor. Congress, by their acts of 1789, 1790, 
1792, 1797, and 1799, gave this priority of payment 
over private creditors, in cases of insolvency, and the 
distribution of the estates of deceased debtors.* In the 
case of Fisher vs. Blight,^ the power thus vested in the 
government by act of Congress was declared to be con¬ 
stitutional, and coming within the legitimate scope of 
7neans adapted to an end which is constitutional. The 
government must pay the debts of the Union, and 
therefore is vested with the most eligible means of 
doing it. 

§ 223. The principle is, that the government of the 
* 1 Kent’s Comm. 230, * 2 Craqch, 358* 


92 


CONSTITUTION OP 


United States dire preferred creditors to citizens, or even 
to states; but no lien is created by this preference; a 
prior bona fide conveyance is valid. The same prin¬ 
ciple came up and received a further exposition in sev¬ 
eral other casesd 

§ 224. The limits of this priority is thus defined: 

1. It exists in the case of the death of the debtor 
without sufficient assets. 

2. In the case of bankruptcy, or legal insolvency, 
manifested by some act pursuant to law. 

3. In case of the voluntary assignment, by the insol¬ 
vent, of all his property to pay his debts. 

4. In ease of an absent, concealed, or absconding 
debtor, whose effects are attached by process of law. 
This prerogative of the United States must be strictly 
construed, for it is in derogation of the rights of cred¬ 
itors. 

§ 225. The United States have likewise, by impli¬ 
cation,'^ the right of suing in their own courts; and suits 
may be brought in the name of the United States, or of 
any artificial person, as the Postmaster-general, for their 

benefit.3 

§ 226. Another exercise of implied power by the 
government is found in the acquisition of Louisiana and 
Florida by treaty. No provision is made in the Con¬ 
stitution for acquiring foreign territory; and even in the 
opinion of President Jefferson, there was no constitu¬ 
tional power to make the treaty for the acquisition of 
Louisiana. The President and Congress, however, ap¬ 
proved the act, and the nation acquiesced.^ This power 
is, however, an incident of sovereignty. 

§ 227. Another exercise of implied authority was the 
passage of the celebrated Alien and Sedition Laws.® 
The first gave the President the powder to order out of 

» 3 Cranch, 73; 5 Id. 289; 8 Cranch, 431; 2 Wheaton, 396. 

2 I Kent’s Comm. 233. 3 3 Story’s Comm. 155. 

43 Story’s Comm. 162; 4 Elliott’s Debates, 255, 

^ Alien and Sedition .\cts, 1798. * 


THE UNITED STATES. 


93 


the country such aliens as he should deem dangerous to 
the peace and safety of the country; and ihe second 
made it a public’crime for persons to combine and con¬ 
spire together, with intent to oppose any of the measures 
' of the United States, or to write, print, or publish, or to 
disseminate any false, scandalous, and malicious writ¬ 
ings against the government of the United States, Con¬ 
gress, or the President. These acts soon expired by 
their own limitations, and never received a judicial 
sanction. They excited general odium, and have not 
been revived. 

§ 228. Section 9Tir. 1st clause. The migration or 
importation of such persons as any of the states now ex¬ 
isting shall think proper to admit, shall not he prohibited 
by the Congress prior to the year one thousand eight 
hundred and eight; but a tax or duty may be imposed 
on such importation, not exceeding ten dollars for each 
person. 

§ 229- The persons here spoken of were slaves, and 
the effect of this clause was to permit the slave-trade 
till 1808. After that time arrived, Congress prohibited 
it in every direction, and affixed to it the penalties of 
piracy. 

§ 230. The privilege of the writ of Habeas Corpus 
shall not be suspended, unless ivhen in cases of rebellion 
or invasion the public safety may require it. 

§ 231. The term Habeas Corpus is a Latin phrase, 
signifying “ You may have the body.” The Writ of 
Habeas Corpus is a judicial writ, grantable by any^ 
Court of Record or judge thereof, and commands the 
sheriff, or other officer named in it, to have the body, 
and bring it before said judge, or court. The object of 
the writ is, by bringing a person, confined by any means 
whatever, before a competent authority, to have his con¬ 
finement, and the cause of it, investigated; and if it be 
not strictly legal, to discharge him.^ The writ is grant- 

1 1 Blackstone’s Comra. 


94 


CONSTITUTION OF 


able upon the application of any person whomsoever, upon 
behalf of the prisoner, and is the only mode by which a 
person illegally detained may at once obtain his liberty. 
The privilege of the writ of Habeas Corpus is, there¬ 
fore, an invaluable privilege, and is a part of the essence 
of liberty inserted in the Constitution, where it can nei¬ 
ther be mistaken, nor evaded. 

§ 232. Our writ of Habeas Corpus is derived from 
the English Statute of the 31st Charles II. which was 
passed in consequence of frequent invasions of the per¬ 
sonal rights and liberties of the citizen during the reign 
of Charles I. 

§ 233. The writ may be suspended in case of rebel¬ 
lion or invasion; yet no suspension has ever yet taken 
place. An attempt to suspend it was made during the 
administration of Mr. Jefferson, on the occasion of Burr’s 
conspiracy, but it failed in the House of Representatives 
by a large majority.^ 

§ 234. 3d clause. No Bill of Attainder, or Ex Post 
Facto law shall be passed. 

The terms Bill of Attainder and Ex Post Facto have 
already been defined.^ The very definition of these 
explains the meaning of the clause in the Constitution. 
The former, by which judgment should be passed and 
punishment inflicted upon the citizen without trial, 
and the latter which makes an act criminal which was 
not criminal when committed, were obviously incon¬ 
sistent with any thing like justice to, or liberty in, 
the citizen. They were, therefore, expressly pro¬ 
hibited. 

§ 235. 4th clause. No capitation or other direct tax 
shall be laid, unless in proportion to the census or enu¬ 
meration herein before directed to be taken. 

This clause is nearly the same with a part of the 
third clause of the 2d Section, 1st Article. The only 

1 1 Senate Journal, 1807; Journal of the House of Representatives, 
1807. 2 Definitions, 28 and 29. 


THE UNITED STATES. 


95 


difference is the insertion of the word capitation, —but 
this, by the following words, or other direct tax, is evi¬ 
dently included under the head of direct taxes. The 
meaning of both clauses then is, that direct taxes, as 
well as representation, should be in proportion to the 
census in each state,—^as directed to be taken in the 2d 
Section. 

§ 236. 5th clause. No tax or duty shall be laid on 
articles exported from any state. No preference shall he 
given by any regulation of commerce or revenue to the 
ports of one state over those of another; nor shall vessels 
hound to or from one state, be obliged to enter, clear, or 
pay duties in another. 

These prohibitions explain themselves so clearly, as 
to require little exposition by commentary or authority. 
The first clause,preventing duties upon exported articles, 
is rendered necessary by the fact, that without it, the 
agriculture and commerce of some states might, at any 
time, be destroyed by sucli duties. Some states, as 
South Carolina and Alabama, derive their whole wealth 
fi'om the exportation of particular articles, and others 
again, as Virginia, and North Carolina, and Maine, a 
great part of it: so that by means of such duties the 
government might at any time make the most odious 
distinctions among the states; nor would it de'rive any 
advantage to itself, for duties upon exports can at no 
time be advantageous, for the obvious reason that it is 
by such means only a nation is enabled to procure either 
the money or produce of other nations. 

It is also forbidden to give any preference to the ports 
of one state over those of another, or to oblige vessels 
bound from one state to enter, clear, or pay duties in 
another. The reason of this is yet more clear than that 
of the other. If the reverse of this were true, and such 
preference was allowed, and such duties imposed on ves¬ 
sels, it is plain the states would be in the relation of 
foreign states to each other. There would be no reci- 


96 


CONSTITUTION OF 


procity of interests between them, and the unity of the 
government would be destroyed. 

§ 237. 6th clause. No money shall be drawn from 
the treasury, hut in consequence of appropriations made by 
law; and a regular statement and account of the receipt 
and expenditures of all public money shall be published 
from time to time. 

The object of this provision was, 

1st, To place the public moneys beyond the reach of 
the executive: however limited the powers of the execu¬ 
tive in other respects, it is obvious that if he has control 
of the purse, he would be unlimited in the most essen¬ 
tial attribute of power. It is, therefore, wisely provid¬ 
ed, that the people, who alone bear the burthens of tax¬ 
ation, should, through their representatives, alone have 
the power of appropriating the resulting revenue. The 
administrations of General Washington and Mr. Jeffer¬ 
son were minutely strict in the observance of this in¬ 
junction of the Constitution; but many instances might 
be cited since their time, in which money had been ap¬ 
plied to objects different from those to which it had been 
specifically appropriated. 

§ 238. 2d, The other part of this clause, requiring a 
strict account of receipts and expenditures, was made 
to ensure fidelity and accuracy in the disbursement of 
public moneys. In the treasury department, as will be 
seen hereafter, various checks and balances, in respect 
to the transfer of money from the treasury, have been 
devised. 

§ 239. 7th clause. No title of nobility shall be granted 
by the United States, and no person holding any ofee of 
profit or trust under them shall, without the consent of 
Congress, accept of any present, emolument, ofiice, or 
title of any kind whatever, from any king, prince, or for¬ 
eign state. 

§ 240. The first clause, in reference to titles of no¬ 
bility, is the constitutional barrier against those odious 


THE UNITED STATES. 97 

personal distinctions which arise from, and originate 
aristocracies in other countries. 

The second clause, in reference to offices and titles 
from foreign powers, is made as a check against the cor¬ 
ruption of the officers and citizens of this government, 
by the princes and ministers of foreign states. 

§ 241. Section IOtii. Clause 1 st. No state shall 
enter into any treaty, alliance, or confederation; grant let- 
ters of marque and reprisal; coin money; emit hills of 
credit; make any thing but gold and fsilver coin a tender 
in payment of debts; pass any bill of attainder, ex post 
facto law, or law impairing the obligation of contracts; 
or grant any title of nobility. 

§ 242. The power to enter into any treaty, alliance, 
or confederation, is one of the most important attributes 
of national sovereignty: when the states parted with it, 
they parted with one of those characteristics which 
made them independent as it respects each other. This 
should be borne in mind, as it will be seen in the end 
that they parted with them all, and thus divested them?- 
selves of all that national sovereignty, which in modern 
times is the sole foundation of the strange and fanciful 
theories put forth under the name of state rights. 

This right to make separate treaties and alliances 
was yielded up by the old articles of confederation; for 
it was perfectly plain and palpable that the states could 
not retain it and form one united nation: the latter was 
their object, and they yielded the former. 

§ 243. Letters of Marque and Reprisal are a com¬ 
mission from the sovereign authority to a citizen or sub¬ 
ject to make reprisals on the vessels or property of for¬ 
eign nations who have injured the one granting them.^ 
The right of issuing these is prohibited to the several 
states. It lies in the government of the Union. The 
reason of this also is obvious. Letters of Marque^ are 
merely introductions to war; and if one state had the 
* Vattel, book 2d, chap. 18th, section 346. ^ 3 Story’s Comm. 219. 

9 


98 


CONSTITUTION OP 


right to issue them independent of the rest, all the others 
might immediately be involved in war by the instrumen¬ 
tality of that one. It will be remarked, that this right 
again is, by the definition, an attribute of national sove¬ 
reignty, and is therefore taken from the states and vested 
in the government of the nation. 

§ 244. The right of coining money is also a right* of 
sovereignty, and is vested in the general government. 
If the right of coinage was vested in the several states, 
then there would be no uniformity in the standard of 
value, and spurious coin might be circulated. 

§ 245. The next prohibition is that against issuing 
“Bills of Credit.” What is a Bill of Credit? A Bill 
of Credit 2 is defined to be paper intended to circulate 
through the community for its ordinary purposes, as 
money, which paper is redeemable at a future day. 

§ 246. Is it necessary to constitute a Bill of Credit, 
that it should be made a legal tender? In the case of 
Craig vs. the state of Missouri,^ the Supreme Court 
decided that it was not necessary that they should be 
made a legal tender in order to constitute them a Bill 
of Credit. In that case the state of Missouri made 
loans on certain certificates, issued by the Auditor and 
Treasurer of the state, of various denominations, and 
which were made receivable at the treasury in payment 
of taxes and debts, and by public officers in payment of 
their salaries. They bore interest, and were redeema 
ble by the state. Such certificates were decided by the 
court to be Bills of Credit, and as such unconstitutional. 

§ 247. The object of the prohibition was to prevent 
the flood of depreciated currency which had so embar 
rassed the states during and subsequent to the revolu 
tionary war. It is plain that without this and the ac 
companying clauses in relation to coins and currency, 
there could be no fixed standard of value, and commerce 

1 Vattel, book 1, chap. 10th, sec. 106, 107. 2 3 Story’s Comm. 227. 

* 4 P eters’ Supreme Court Reports, 410. 


THE UNITED STATES. 99 

and property would be constantly exposed to all the 
hazards of an uncertain and fluctuating currency. 

§ 248. The states are also forbidden to make any 
thing but gold and silver coin a legal tender in payment 
of debts. If they could have made any thing else a 
good tender, there is no species of depreciated currency 
which might not be paid for debts; and the difficulties, 
dishonesty, and bankruptcies attendant upon such a 
state of things will be easily understood. Any thing 
may be borne in civil society with more ease than that 
which interrupts the regular course of business, ob¬ 
structs the due administration of justice, and prevents 
the just payment of debts. The emission of Bills of 
Credit, and the making any thing but coin a legal tender 
by the states, would produce all these mischiefs. Du¬ 
ring the revolution,* and both subsequent and anterior 
to it, the resort to such means had reduced public credit 
to utter contempt, and ruined thousands of honest and 
industrious citizens. It was the recent experience of 
these evils, and the inconsistency of such powers in the 
states, with the existence of a national government, 
which prompted the prohibitions we have just recited. 

§ 249. It is prohibited to the states, as well as to the gen¬ 
eral government, to pass any hills of attainder or ex post 
facto laws. The reason is the same. The same injustice 
would be worked in either case. Such laws, at all times un¬ 
just and inexpedient, are peculiarly so in a country where 
the whole basis of the government is right and justice. 

§ 250. The states cannot impair the obligation of con¬ 
tracts. This is one of the most important provisions of 
the Constitution, and has already occasioned much dis¬ 
cussion, and been illustrated by several judicial decisions. 

§ 251. The first inquiry is, what is a contract? A 
contract is an agrecTnent ^ to do or not to do a particular 
thing. It must be made between two or more persons.* 

I 2 Pitkin’s Civil History, p. 156, 157. *2 Blackst. Comm. 443. 

^Idem; 3 Story’s Conun. 241. 



100 


CONSTITUTION OF 


§ 252. Contracts may be either executory or exe¬ 
cuted.^ 

An executory contract is one in which a party binds 
himself to do or not to do something hereafter.'^ Thus, 
if two men agree to exchange horses next week, or one 
of them agrees to do work to-morrow, and the other to 
pay money for it, these contracts are executory, because 
they are to be performed at a future time. 

§ 253. But, a contract executed is one in which the 
act to be done is performed at once. As, if two men 
agree to exchange horses now, and do it on the spot, or 
one agrees to convey land, and makes and delivers the 
deed on the spot, such contracts are executed, because 
the act required to be done is done at once. 

§ 254. A grant and a contract executed are the same 
thing.3 A contract executed conveys a thing in posses¬ 
sion. A contract executory conveys a thing in action. 

§ 255. Contracts are also express or implied.^ Ex¬ 
press contracts are those of which the terms are ex¬ 
pressed in the agreement; implied contracts are those 
which are necess.arily inferred from the nature of the 
agreement. An agreement that I shall pay so much for 
on ox is an express contract. If a man work for me, 
for my benefit, reason, justice, and the law all imply a 
contract that I shall pay him for it. Both these kinds 
of contracts are included in the general words of the 
Constitution. 

§ 256. The Supreme Court have decided, that a con¬ 
tract and a compact are one and the same thing.^ 

§ 257. As the term contract in the Constitution is not 
limited, it signifies both contmets executed and execu¬ 
tory. A grant, therefore, is such a contract as cannot 
be impaired by the states. Such was the decision in 
Fletcher vs. Peck.^ There the state of Georgia had 
granted away certain lands to Peck, who had conveyed 

* Blackst. Comm. 443; 3 Story’s Comm. 241. 2 Wheaton, 197; 

12 Wheaton, 256. 3 2 Blackst. Comm. 443. ^ 6 Cranch, 136. s Idem. 


THE UNITED STATES. 


101 


them to Fletcher for a valuable consideration; subse¬ 
quent to which, the state of Georgia cancelled their 
grant to Peck. Fletcher sued on the covenant of war¬ 
rantee, and the court held that the law cancelling the 
grant was unconstitutional, because impairing a contract, 
which had already vested in Fletcher a right to the 
land. 

§ 258. The next inquiry is, what is the obligation of 
contracts? There are two kinds of obligations to con¬ 
tracts,— moral and legal. The obligation contemplated 
by the Constitution is a legal obligationit is one aris¬ 
ing under civil laws; for a moral obligation cannot be 
impaired or enforced by human laws. The obligation, 
then, meant by the Constitution, must be one which 
arises either from the enactments of a state, or can be 
influenced by those enactments. If, then, a contract is, 
by the laws of the place where it is made, illegal and 
void, that contract has no civil obligation, and no action 
can arise upon it.^ When it arises from civil laws, and 
is not by these laws illegal and void, then it is such an 
obligation as may be impaired, and consequently such a 
one as comes within the scope of the Constitution. 

§ 259. The obligation, therefore, must be a civil one, 
and it must be valid according to the municipal law. It 
cannot then subsist contrary to the positive law. But 
may it exist independently of it? May it exist without 
a remedy? Thus, if two persons make a contract of a 
kind which, though by the laws of the state it is per¬ 
fectly valid to make, yet by the laws of the state can¬ 
not be enforced, has that contract an obligation within 
the meaning of the Constitution? If it has, what is it? 
The only obligation which it would seem to have is a 
moral one. That undoubtedly it has. But a moral ob¬ 
ligation, it is conceded on all hands, cannot be impaired, 
and consequently is not the obligation meant. 

§ 260- On this point there is great diversity of 
• Ogden vs. Saunders, 12 Wheaton, 257. ^ 3 Story’s Comm. 245, 

9 ^ 


102 


CONSTITUTION OP 


opinion. It is stated on high authority' that the obliga¬ 
tion may exist independently of positive law, and be 
perfect without a remedy. The examples given, how¬ 
ever, do not appear to confirm the principle laid down. 
Thus it is said,^ that a state may have taken away “im¬ 
prisonment for debt, and the debtor may have no prop¬ 
erty; but still the right of the creditor remains, and he 
may enforce it against the future property of the debtor. 
So a debtor may die without leaving any known estate, 
or without any known representative. In such cases 
we should not say that the right of the creditor was 
gone, but only there was nothing on which it could 
presently operate. But, suppose an administrator 
should be appointed, and property in contingency should 
fall in, the right might then be enforced to the extent of 
the existing means.” These examples are cited by the 
learned commentator, to show that right may exist loith- 
out a remedy. With due deference to an opinion which 
is at once authoritative and respected, it is thought that 
he has, in these examples, manifestly confused the rm- 
edy given by the law, with the object upon which that 
remedy acts. What is a remedy at law? We are told 
by an authority,® at least as high as the one above cited, 
that “the law consists of several parts, one declaratory, 
whereby the rights and wrongs are clearly classified 
and laid down; another directory, whereby the subject 
is instructed to observe these rights, and abstain from 
these wrongs; a third remedial, whereby a method is 
pointed out to recover his rights, or redress his 
wrongs.” 

§ 261. Here the remedy in law is defined to be the 
method whereby a man may recover his rights, or re¬ 
dress his wrongs. Now, in the example first cited 
above, of a debt, the remedy, or the method given by law 
is, first the action of debt, next the judgment upon that 
action, and lastly the execution under that judgment; 
t 3 Story’s Comm. 247. 2 Idem. 3 1 Blackst. Comm. 53,. 54. 


THE UNITED STATES. 


103 


now the person or property of the debtor constitutes the 
object upon which that remedy acts : both may be out of 
the reach of the remedy, and yet the remedy exist, and 
be perfect at law. It is not perfect in its consequences, 
merely because other circumstances, disconnected from 
the remedy, have prevented that remedy from attaching 
to the object. The remedy in the example above stated 
attaches to the property ; that property, by one of the 
conditions of human life, whether poverty or misfortune, 
does not exist. Here then the right to a remedy is per¬ 
fect; the remedy itself, viz. action, judgment,?ind execu¬ 
tion is perfect; but the object upon which the remedy is 
to attach is out of reach. The case is the same in the 
second example, of an intestate dying without an es¬ 
tate or representative. The municipal laws of almost 
every civilized state either require that the Probate 
Court should appoint an administrator, or give power to 
the creditor to have one appointed. The administrator 
being appointed, the second example is precisely the 
same as the first: the administrator, as the representa¬ 
tive of the intestate, is the debtor, and the right,’ the 
remedy, and the object the same as in the other case. 
The remedy here spoken of is the remedy at law. The 
circumstance of the existence of property or not, on 
which the remedy can attach, is one which constitutes 
no part of the remedy at law; for it is obviously one which 
no human law can regulate. If human intelligence 
could have devised a means by which the debtor should 
always have property to answer the demands of his 
creditor, it would be an act of wusdom which never 
would have been neglected. We may conclude, then, 
that if a right can exist without a remedy to enforce it, 
these are not examples of it. Are there any other 
examples, either real or imaginary, by which such a 
principle can be illustrated? 

§ 262. The meaning of the term obligation always 
implies a power to enforce it. To oblige is to compel. 


104 


CONSTITUTION OP 


According to Justice Blackstone,^ the strict sense of ob¬ 
ligation is such a constraint as makes it impossible for a 
man to act otherwise. 

§ 263. Civil obligation, then, consists in the remedial 
power of enforcement. This seems to have been the 
opinion of several eminent judges in the celebrated case 
of Ogden vs. Saunders.^ In that decision the judges 
gave their opinions seriatim; and in respect to the obli¬ 
gation of contracts, as well as several other points, were 
widely different in their judgments. These questions 
are, therefore, far from being settled, although the deci¬ 
sion upon the facts of that case is doubtless permanent law. 

§ 264. Justice Washington said, that “the obligation 
of a contract is the law which binds the parties to per¬ 
form their agreement.^"* While he admitted that the 
common law of nations, or the moral law, might form a 
part of the obligation of a contract, he insisted that this 
law is to be taken in strict subordination to the munici¬ 
pal law of the land where the contract is made, or is to 
lie executed. 

§’265. Justice Thompson said, “for it is the law 
which creates the obligation, and whenever, therefore, the 
lex loci provides for the dissolution of the contract in 
any prescribed mode, the parties are presumed to have 
acted subject to such contingency.” 

§ 266. Justice Trimble said, “it may be fairly con¬ 
cluded, that the obligation of the contract consists in the 
power and efficacy of the law, which applies to and en¬ 
forces performance of a contract, or the payment of an 
equivalent for non-performance. The obligation does 
not inhere and subsist in the contract itself, proprio 
vigore, but in the law applicable to the contract. This 
is the sense, I think, in which the Constitution uses the 
term obligation.'^'’ ^ 

§ 267. Chief Justice Marshall then said,'* ^^obligation 

11 Blackst. Comm. 57. ^12 Wheaton, 260. » 12 Wheaton, 318. 

4 Idem. 350, ' 


THE UNITED STATES. 


105 


and remedy then are not identical. They originate at, 
and are derived from, different sources;—it would seem 
to follow that law might act on the remedy without act¬ 
ing on the obligation.” 

Enough of these dicta have been cited to show, that 
while the majority of the court agreed in the decision 
which was made, the individual judges held very differ¬ 
ent opinions upon the main question, the obligation of 
contracts. 

§ 268. The next great question in respect to the im¬ 
pairing the obligation of contracts, arose in respect to 
the Insolvent Laws of the several states. The princi¬ 
pal cases upon this point are those of Sturges vs. Crown- 
inshield;^ 3PMiUan vs. ^PNiell,^ and the case just cited, 
of Ogden vs. Saunders. The substance of these decis¬ 
ions has already been given in another place.^ 

§ 269. The next decision upon this subject was in 
regard to grants. In the case of Terrett vs. Taylor,'^ 
the Supreme Court decided, that a legislative grant, 
competently made, vested an indefeasible and irrevoca¬ 
ble title. A state cannot revoke what it has once grant¬ 
ed away; nor can the Legislature repeal statutes crea¬ 
ting private corporations, and divest the rights under 
them, without the consent or default of the corpo¬ 
rators. 

§ 270. One of the most important cases upon the sub¬ 
ject is that of Dartmouth College vs. Woodward,^ A 
charter was granted by the British crown in 1769 to 
the Trustees of Dartmouth College, who acted under it, 
established the college, and acquired property. The 
Legislature of New-Hampshire made material altera¬ 
tions in the charter, transferred the government of the 
college to the government of the state, and made the 
will of the donors subservient to their own.® The Su¬ 
preme Court decided that such a charter was a contract 

» 4 Wheaton, 122. 2 Idem. 209. » Page 104. < 9 Cranch, 43. 

6 4 Wheaton, 518. 6 i Kent’s Comm. 390. 


106 


CONSTITUTION OF 


within the meaning of the Constitution; that the college 
was a private institution, not liable to the control of the 
Legislature; and that, therefore, the act of the Legisla¬ 
ture was an act impairing the obligation of contracts, 
and void. The court said, that charters of an eleemo¬ 
synary kind, for the benefit of religion, education, or 
charity, administered by trustees, was within the pur¬ 
view of the Constitution; and that rights acquired under 
them were vested and protected by it. No doubt such 
is the clear dictate of reason; and such institutions, if 
any, ought to be protected from the ruthless hands that 
are too often laid upon them. 

§ 271. As the prohibition in relation to ex post facto 
laws is confined to retrospective crbmnal laws,—and as 
there is a class of retrospective laws which are not 
criminal,—this last class is restricted only by the pro¬ 
hibition against the impairing the obligation of con tracts, 
and there is therefore a large class of retrospective laws 
which it is constitutional for the states to pass. Thus, 
a law abolishing imprisonment for debt, as well as to 
past as to future contracts, may be constitutionally pass¬ 
ed by the state legislatures.^ All retrospective laws 
are, however, unjust and impolitic; for they destroy the 
relation of circumstances under which the parties upon 
whom the law acts stood at the time they made the con¬ 
tract, or performed the act in question. 

The last prohibition of this clause is, that the state 
shall grant no title of nobility. The reason of this is 
the same as that in regard to the national government: 
it was an exclusion of every thing like nobility and ar¬ 
istocracy. 

§ 272. Clause 2d. No state shall, without the consent 
of Congress, lay any imposts or duties on imports or ex¬ 
ports, except what may be absolutely necessary for exe¬ 
cuting its inspection laws; and the riett produce of all 
duties and imposts laid by any state on imports and ex- 
1 2 Peters’ Supreme Court Rep. 870. 


THE UNITED STATES. 


107 


ports, shall be for the use of the Treasurij of the United 
States; and all such laws shall he subject to the revision 
and control of the Congress. No state shall, without the 
consent of Congress, lay any duty on tonnage, keep 
troops or ships of war in time of peace, enter into any 
agreement or compact with another state or ivith a for¬ 
eign power, or engage in war unless actually invaded, or 
in such imminent danger as will not admit of delay. 

§ 273. The Constitution had already restricted Con 
gi*ess in the power to lay taxes, by requiring that direct 
taxes should be in proportion to the census, and indirect 
taxes uniform; that no duties should be laid on exports, 
and no preference given to the commerce of one state 
over another. If such restrictions were found necessa¬ 
ry for the general government, much more were they 
for the several states, who, by local regulations, were 
at all times liable to collision, and might destroy the 
commerce of each other. In fact, the revenue from com¬ 
merce is another attribute of national sovereignty, and 
could safely be trusted only to that body in whom the 
national sovereignty resided, and to whom was intrusted 
the national defence and the general welfare. Sufficient 
power over internal commerce is left to the states, with 
the consent of Congress, to execute their inspection laws, 
—all the rest is taken away. 

§ 274. Inspection laws are not strictly regulations of 
commerce, though they may have an influence upon it.* 
The object of inspection laws is to improve the quality 
of articles produced in the country, and fit them for use 
and exportation. 

§ 275. In the year 1821, the state of Maryland en¬ 
acted, that all importers of foreign articles, commodities, 
&-C., by bale, package, &c., and those persons selling 
the same at wholesale by bale, package, &c., shall, be¬ 
fore they are authorized to sell, fcc., take out a license, 
for which they shall pay fifty dollars, &c. This act 
* 3 Story’s Comm. 472. 


108 


CONSTITUTION OP 


was resisted as a violation of the Constitution, and the 
Supreme Court decided that it teas unconstitutional. 
The ground of the decision was, that although an import 
duty is generally secured before the goods are landed, 
yet a tax is not the less an impost, though levied on 
them after they were landed; that a duty on imports is 
not merely a ditty on the act of importation, but is a duty 
on the thing imported.^ Nor does it make any difference 
whether the duty was imposed by way of license upon 
the occupation, or as a direct duty on the article. 

§ 276. It has already been seen that a state has no 
power to tax the Bank of the United States, because 
they have no power to restrain the constitutional means 
given to the government to execute constitutional ends. 

§ 277. In the same manner it has been decided that 
a state has no power to tax stocks issued for loans to the 
United States.^ 

§ 278. Tonnage duties are taxes laid on vessels at so 
much per ton. After what has been said upon the pro¬ 
priety of imposts on imports and exports by the states, 
the reason for prohibiting a duty on tonnage will be ev¬ 
ident. If the states could have laid duties on tonnage, 
they could have effected, indirectly, all the mischiefs 
flowing from a power in the states to tax imports and 
exports. 

§ 279. The states shall not keep troops or ships of 
war in time of peace: this again is founded on the same 
principles as the other prohibitions relative to the exer¬ 
cise of national sovereignty; to keep troops, make war, 
&c., are attributes of national sovereignty, which could 
not exist at once in both the general and state govern¬ 
ments, without constituting them separate nations, —a 
result which it was the very object of the Constitution 
to prevent. The prohibition does not extend to a mu¬ 
nicipal guard, such as those kept to guard penitentia- 

1 12 Wheaton’s Rep. 419. 

2 Warton vs. The City Council of Charleston, 2 Peters’ R. 449. 


THE UNITED STATES. 


109 


ries and arsenals; for these are not troops, but merely 
ministers of the civil law. 

§ 280. The power to make treaties, alliances, and 
confederations had, in another place, been taken from 
the states; to this prohibition is here superadded that of 
making compacts and agreements with another state or 
with a foreign power, without the consent of Congress, 
It may be asked what compacts and agreements are here 
meant? As alliances, treaties, &-c., had before been 
mentioned, this clause refers* to « private rights of sov¬ 
ereignty; such as questions of boundary, interests in land 
situated in the territory of each other, and other inter¬ 
nal regulations for the mutual comfort and convenience 
of states bordering on each other.” The compact be¬ 
tween Virginia and Kentucky is of this class. 

§ 281. No state can control the exercise of any au¬ 
thority under the general government.^ 

§ 282. The state courts cannot annul the judgments, 
or determine the extent of the jurisdiction, of the courts 
of the Union.* 

§ 283. No state tribunal can. interfere with seizures 
of property made by revenue officers under the laws of 
the United States.^ 

§ 284. No state can issue a mandamus to an officer 
of the United States. The official conduct of an officer 
of the government of the United States can only be 
controlled by the power that created him.® 

§ 285. State Laws, as, for example, statutes of limit¬ 
ation, insolvent laws, &c., have no operation upon the 
rights or contracts of the United States.® 

1 3 Story’s Comm. 272. * 1 Kent’s Comm. 382, ® 5 Cranch, 115. 

* 2 Wheaton, 1, ® 6 Wheaton, 598. ® 8 Wheaton, 253. 

10 




110 


•CONSTITUTION OF 




. ' T 

ARTICLE 11. ^ 


OF THE EXECUTIVE. 


§286. Section 1st. Clause 1st. The Executive pow¬ 
er shall be vested in a President of the United States of 
America. He shall hold his office during a term of four 
years, and, together ivith the Vice President, chosen for 
the same time, he elected as follows: 

§ 287. The chief points laid down in this clause arC, 
1st, The unity of the executive; 2d, That he shall be 
elected; 3d, He shall hold his office for a limited time; 
and, 4th, That he be styled President. 

1st. As to the unity of the executive, common sense, 
as well as the agreement of the best writers,' unite in 
the opinion, that the office which is entirely ministerial, 
—and in our government the executive is so,—is better 
filled by one head than’by several. History has in all 
instances condemned the vesting executive power in the 
hands of a council, and whenever the experiment has 
been tried among the states,-it has proved disastrous. 

2d. The next principle laid down is, that the executive 
shall be elective; and this is the distinguishing character¬ 
istic of our government from that of England, France, 
and other governments of Europe, where some portion 
of constitutional liberty is enjoyed. It is not the power 
possessed by the executive so much as it is the authority 
whence, and the mode in which, it is derived, that consti¬ 
tutes the difference between these governments and ours. 
The hereditary and perpetual principles which prevail in 
all the governments of Europe, for ever destroys all ac- 

1 Montesquieu’s Spirit of Laws, book II. chap. 6; De Lolme on 
Constitution, of England; I Kent’s Comm. 253, 255; 3 Story’s 
Comm. 282. 


THE U^■ITED STATES. 


Ill 


countability on the part of the executive to the people; 
hence the English maxim, “The king can do no wrong.” 
He is, by their constitution, placed above inquiry and 
accountahilUy. In this country, however, there is ac¬ 
countability in all the departments of the government. 
The executive is electit.e, a»d his office of limited dura¬ 
tion; so that if he err or offend, he may soon be held 
amenable at the bar of public opinion. 

3d. The office is limited. —This principle, like that 
of election, is necessary to give a full and perfect con¬ 
trol of the public opinion over the executive, and make 
it responsible. 

4th. The style of President is very appropriate to 
the office of one whose duty it is to preside over the 
administration of public affairs. 

Of the Vice-President we shall speak hereafter. 

§ 288- Clause 2d- Each state shall appoint, in such a 
manner as the Legislature thereof may direct, a number 
of electors equal to the whole number of senators and re¬ 
presentatives to which the state may be entitled in the Con¬ 
gress; but no senator or representative, or person hold¬ 
ing an ojice of trust or proft under the United Statesy 
shall be appointed an elector. 

§ 289. The electors are to be appointed in the man¬ 
ner which the Legislature shall direct. In the different 
States, different modes of electing the electors have 
prevailed. In some, the district mode has prevailed, 
as in the state of Maryland; in others, as in Delaware, 
they are elected by the Legislature itself; but gene¬ 
rally they are elected by general ticket. The first 
has been found to fritter away the power of the state, 
and the second seemed to take it away from the people. 

The number of electors a state is entitled to, is equal 
to the whole number of senators and representatives; 
thus, Ohio has 19 representatives and 2 senators; con¬ 
sequently she is entitled to 21 electors. 

IVo qualification is required of an elector, except he 


112 


CONSTITUTION OF 


shall not hold an office of profit or trust under the gov¬ 
ernment of the United States. 

§ 290. The next clause in the Constitution has been 
abrogated by an amendment, passed by the constitu¬ 
tional number of States in 1801, which we shall pres¬ 
ently recite. 

That clause of the Constitution required that the 
electors should vote for tico j^crsons, without designating 
either of them for President or Vice-President. That 
the person having the greatest number of votes, if that 
be a majority of the electors, shall be President; and if 
there be more than one who has such a majority, and 
have also an equal number of votes, then the House of 
Representatives shall immediately choose by ballot one 
of them to be President; but if no one has the major¬ 
ity, then from the Jive highest the House shall choose 
the President. Each state in the House shall have 
one vote. After the choice of President, the per¬ 
son having the highest number of votes shall be Vice- 
President, and if two have an equal number of votes, 
the Senate shall choose between them. 

§ 291. As in the mode here pointed out, there was 
no distinction made between President and Vice-Presi 
dent, it follows that, in party conflicts, where the whole 
party support one ticket, it must necessarily happen, 
that unless a vote be dropped, two persons would have 
an equal number of votes, and consequently the elec¬ 
tion devolve upon the House of Representatives. This 
difficulty actually occurred at the election of 1801, at 
which Jefferson and Rwrr received the same number of 
votes. The House of Representatives, being divided by 
violent party feelings, protracted the election through 
thirty-six ballotings, and at last made the election only 
in consequence of the danger of vacating the executive 
office. The result of that canvass gave rise to an 
amendment of the Constitution prescribing the present 
mode of election. 


THE UNITED STATES. 


113 


The following is the amendment: 

§ 292. 12th Amendment to the Constitution. The 
electors shall meet in their respective states, and vote hy 
ballot for President and Vice-President, one of whom at 
least shall not be an inhabitant of the same state tvith 
themselves; they shall name in their ballots the person 
voted for as President, and in distinct ballots, the person 
voted for as Vice-President; and they shall make distinct 
lists of all persons voted for as President, and of all per¬ 
sons voted for as Vice-President, and of the number of 
votes for each, which lists they shall sign and certify, 
and transmit, sealed, to the seat of the government of the 
United States, directed to the president of the Senate; 
the president of the Senate shall, in the presence of the 
Senate and the House of Representatives, open all the 
certificates, and the votes shall then be counted; the 
person having the greatest number of votes for Presi¬ 
dent shall be the President, if such number be a major¬ 
ity of the whole number of electors appointed: and if no 
person have such a majority, then from the persons hav¬ 
ing the highest numbers, not exceeding three, on the list 
of those voted for a,s President, the House of Representa¬ 
tives shall choose immediately, by ballot, the President. 
But in choosing the President, the votes shall be taken 
by states, the representation from each state having one 
vote; a quorum for this purpose shall consist of a mem¬ 
ber or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. 
And if the House of Representatives shall not choose 
a President whenever the right of choice shall devolve 
upon them, before the fourth day of March next follow¬ 
ing, then the Vice-President shall act as President, as in 
case of the death or other constitutional disability of the 
President. 

§ 293. The person having the greatest number of 
votes as Vice-President, shall be the Vice-President, 
if such a number be a majority of the whole number 
10 ^ 


114 


CONSTITUTION OF 


of electors appointed; and if no person have a ma¬ 
jority, then from the two highest numbers on the list 
the Senate shall choose the Vice-President: a quorum 
for that purpose shall consist of two-thirds of the whole 
number of senators, and a majority of the whole num 
ber shall be necessary to a choice. 

§ 294. But no person constitutionally ineligible to 
the office of President, shall be eligible to that of Vice- 
President of the United States. 

§ 295- By this arrangement, the competitors for the 
vice-presidency were no longer candidates likewise for 
the presidency; different persons are to be distinctly 
voted for as candidates for each office. This is said to 
diminish the dignity of the office of Vice-President, 
but it seems to be absolutely necessary, to destroy the 
very confusion of persons and offices which occurred 
before. 

The Senate are at liberty now to choose the Vice- 
President, immediately after counting the votes, which 
before they could not have done without a choice of 
President. This is certainly an improvement. 

§ 296. The mode of choosing the President does not 
yet seem to be perfect. A discussion might arise, on 
opening the certificates, as to the competency of the 
electors, the authority of the votes, «S6C., for which the 
Constitution has made no provision.^ 

An instance of defect is put in the case in which an 
equality of votes should be given for more persons than 
the numberfrom which the choice is to be made.^ 

§ 297. 3d clause. Hie Congress may determine the 
time of choosing the electors, and the day on which they 
shall give their votes; which day shall he the same 
throughout the United States. 

The reason of this clause is obvious. Were the time 
of giving the votes different in different states, there 
would be the greatest possible room for intrigue among 
J 3 Story’s Comm. 327, * Idem. 


THK UNITED STATES. 115 

the electors, and as their body is small, some of them 
might be influenced by undue means. 

The power of determining the time of choosing the 
electors is also given to Congress. They have not, 
however, so exercised it as to appoint the same time. 
In 1792, they enacted that the states should choose 
their electors within 34 days of the first Wednesday in 
December. The consequence is, that within that time 
the elections are still made at different periods. It 
would seem that, to prevent all possibility of improper 
influence over the people, the elections should all have 
been held on the same day. As it is, those which arc 
held last must be more or less influenced by those which 
are held first, upon the principle of a common desire in 
human nature to be on the strong side. 

§ 298. 4th clause. No person, except a natural horn 
citizen, or a citizen of the United States at the time of 
the adoption of the Constitution, shall be eligible to the 
orifice of President; neither shall any person be eligible 
to that offee who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident 
within the United States. 

That the chief executive officer should be a citizen of 
the United States, and a native, is unquestionable. The 
age of thirty-five is young enough. The Presidents 
elected have all been more than that; most of them 
between sixty and seventy. Indeed, there will always 
be enough of the fire*’of human passions infused into the 
executive hy partizans, without the aid of the warmth 
and ambition of youth, 

§ 299. By residence in the United States is not meant 
an OihaoluiQ inhabitancy in the United States during the 
whole period, but such an inhabitancy as constitutes a 
permanent domieil. Any other construction would take 
away the citizenship of any public officer resident 
abroad in pursuance of his duty. 

§ 300. 5th clause. In case of the removal of the 


116 


CONSTITUTION OP 


President from office, or of his death, resignation or 
inability to discharge the potcers and duties of said 
ofce, the same shall devolve on the Vice-President; and 
the Congress may by law provide for the case of removal, 
death, resignation, or inability, both of the President 
and Vice-President, declaring what officer shall then 
act as President, and such officer shall act accordingly, 
until the disability be removed, or a President shall be 
elected. 

Congress, on this head have provided, that in case of 
the rernoval, death, or resignation, or inability of the 
President and Vice-President, the President pro. tern, 
of the Senate, and in case there shall be no such Pres¬ 
ident of the Senate, then the Speaker of the House of 
Representatives for the time being, shall act as Pres¬ 
ident, until the disability be removed or the vacancy 
filled. 

§ 301. The case of a vacancy in the offices of 
President and Vice-President, by reason of non election 
at the proper period, is not provided for in the Constitu¬ 
tion. Congress have declared that in case of such an 
event, there shall immediately be held a new election. 
Whether this be constitutional or not is unsettled. 

§ 302. 6th clause. The President shall, at stated 
times, receive for his services a compensation which shall 
neither be increased nor diminished during the period for 
which he shall have been elected; and he shall not re¬ 
ceive within that period any other emolument from the 
United States, or any of them. 

The object of this provision is plain enough; it would 
not be proper to allow either the general or state govern¬ 
ments an opportunity, by increasing or diminishing the 
salary of the executive to play upon its wants or its 
avarice. Congress have permanently fixed the salary 
of the President at twenty-five thousand dollars, and that 
of the Vice-President at five thousand dollars. 

§ 303. 7th clause, Before he enter on the execution 


THE UNITED STATES. 


117 


of his ofice, he shall take the following oath or afrmation: 
I do solemnly swear (^or aj/irm), that I will faithfully 
execute the office of President of the United States, and 
icill, to the best of my ability, jjreserve, protect, and de¬ 
fend the Constitution of the United States. 

The solemnities of an oath seem to be proper and 
necessary to all responsible offices, and peculiarly so to 
that great and sacred one, the chief magistracy of a 
great republic. 

§ 304. Section 2d. Clause 1st. The President shall 
be commander in chief of the army and navy of the 
United States, and of the militia of the several states, 
when called into the actual service of the United States; 
he may require the opinion in ivriting of the principal 
officer in each of the executive departments, upon any sub¬ 
ject relating to the duties of their respective offices; and 
he shall have power to grant reprieves and pardons for 
offences against the United States, except in cases of im¬ 
peachment. 

The power to command the army and navy, militia, 
and entire military armament, flows necessarily from the 
nature^ of an executive. It is made the duty of the exe¬ 
cutive to enforce the laws, preserve order, and repel 
invasions,—duties which could not be performed with¬ 
out the command of requisite force. 

§ 305. The power of the President to delegate his 
authority to another officer was disputed during the last 
war.^ The exception, however, seems untenable, from 
the reason that, if no one but the President in person 
can command them, then the President can only control 
one detachment in one place, —a result evidently con¬ 
trary to the intention of the Constitution. During the 
administration of Washington, the governor of Virginia 
commanded several detachments from different states 
under the appointment of the President, without dispute.* 

1 1 Kent’s Comm. 2G4. *8 Mass. Rep. 548. 

* 5 Marshall’s Washington, 580. 


118 


CONSTITUTION OF 


The power to require opinions in icriting from the heads 
of departments is the mere expression ot a power which 
was necessarily incident to the organization of the exe¬ 
cutive. 

§ 306. The power to grant reprieves and pardons is 
one which requires to be, and is exercised. It has been 
supposed by some that a perfect criminal code requires 
no such power; but there is no petfect criminal code. 
There is no such administration of human justice, that, 
after the conviction of the prisoner, it shall always be 
improper and unjust to pardon him. The only proper 
depository of such a power is the executive. The Ju¬ 
diciary cannot pardon without first supposing itself 
wrong in its own decisions; nor can the Legislature 
without relaxing the law. He, however, whose only 
duty it is to execute the laws, which others have made 
and adjudged, may very consistently be allowed to exer¬ 
cise a discretion in punishment. 

§ 307- 2d clause. He shall have power, hy and with 
the advice and consent of the Senate, to make treaties, 
provided two-thirds of the senators present concur: and 
he shall nominate, and hy and ivith the consent and advice 
of the Senate, shall appoint ambassadors, other public 
ministers, and consuls, judges of the Supreine Court, 
and all other officers of the United States, ichose appoint¬ 
ments are not herein otherwise provided for, and which 
shall he established hy law; hut the Congress may, by 
laiD, vest the appointment of such inferior officers as they 
think proper, in the President alone, in the courts of law, 
or in the heads of departments. 

Some very important political questions have arisen 
out of this provision, and agitated the minds of eminent 
statesmen, as well as the councils of the country. 

§ 308- In the year 1796, a treaty was made* by Mr 
Jay with Great Britain, containing some stipulations 
very offensive to the House of Representatives. The 
1 5 Marshall’s Life of Washington, 650. 


THE UNITED STATES. 


119 


treaty was ratified by the President and Senate, but 
required a law to carry it into cftect. On that occasion, 
after much debate, the House of Representatives de¬ 
clared by a vote of 62 to 37, that they had the right to 
withhold their assent to the validity of a treaty, and 
might, at their pleasure, withhold a law to carry it into 
effect. This doctrine was denied by President Wash¬ 
ington, and the exclusive power of the President and 
Senate affirmed. In their final decision upon the treaty, 
the House deemed it expedient, by a vote of 51 to 48, 
to execute the treaty, but reserved to themselves the 
rights they claimed. 

In 1816, the same question occurred, and the House 
then decided that the sole power over treaties rested 
with the Senate and President. 

§ 309. The predominance of opinion now is, that the 
pow’er to make treaties, &c., is vested only in the exe¬ 
cutive and two-thirds of the Senate. The great reason 
is, that the Constitution 'has made treaties, as well as 
laws, the supreme law of the land, and as such has made 
them, when ratified, a binding contract with other na¬ 
tions.^ 

§ 310. The next power conferred on the President, 
with the advice and consent of the Senate, is the ap¬ 
pointment of ambassadors, ministers, consuls, and other 
public officers. This power is necessary to, and a part 
of, the executive power; for the executive duties have 
to be performed by the officers, and if they are not ap¬ 
pointed by, and not responsible to, the executive, he can¬ 
not be accountable for the performance of those duties.^ 

§ 311. As the Constitution gave power “by and with 
the advice and consent of the Senate” to make appoint¬ 
ments, but said nothing about removals, it early became 
a question whether the power of removal was vested in 
the President alone, or in the President and Senate 
jointly. In the year 1789, the question came before 
1 4 Elliott’s Debates, 250, 275. ^ Idem, 148. 


120 


CONSTITUTION OF 


Congress, on a motion to strike out of the act creating 
a Secretary for Foreign affairs, a clause vesting the 
President with the power of removal. After a long and 
animated debate, the House decided by a vote of 34 to 
20 not to strike out the clause,—thus affirming the power 
of the President. In this debate, it was expressly de¬ 
clared, that the decision was intended to be permanent, 
and act as an exposition of the Constitution; as such it 
has remained, and the power of the President to remove 
was never questioned till recently. In favor of the 
power were Messrs. Madison, Ames, Boudinot, and Bald¬ 
win; against it, Messrs. Sherman, Gerry, Smith, and 
Jackson, of Georgia. 

§ 312. A learned commentatoF has recently express¬ 
ed surprise, that this power of removal should so long re¬ 
main in the President’s hands without question, and inti¬ 
mates that it may be liable to abuses, and is at best of 
questionable constitutionality. To this it may be an¬ 
swered, that the decision of this question was one of 
the most solemn ever made by Congress, and, therefore 
entitled to high respect. As to the question itself, any 
other decision than that made, may at once be reduced 
to an absurdity. Thus, suppose the power is vested in 
the President with the advice and consent of the Sen¬ 
ate; the President wishes to remove an officer, and com¬ 
municates his wish to the Senate: that body calls for 
the reason; the President gives it, and the officer, 
through the mouth of some senator, replies: the Presi¬ 
dent is then reduced to the level of an accuser, or a 
defendant, in respect to one of his own officers, before a 
collateral branch of the government, which assumes to 
decide between them, and be superior to both! And 
suppose the Senate does not consent to his removal,— 
the officer retains his place after he has become obnox¬ 
ious to his superior, and it may be, obtains impunity for 
bis offences. Is this consistent with either the dignity 
* 3 Story’s Comm. 395, 396. 


THE UNITED STATES. 


121 


or the responsibility of the executive? It is supposed 
by some very judicious persons, that an officer is enti¬ 
tled to his place during good behavior, and that he ac¬ 
quires something like an estate in his office. But no 
principle like this is recognised in the Constitution. On 
the contrary, every thing there is made directly or indi¬ 
rectly elective, and consequently nothing is placed on a 
more permanent footing than public opinion. When 
that changes, minor things must change with it. 

§ 313. Such inferior ojjices as they may think proper. 
Congress may vest in the President alone, in the courts 
of law, or in the heads of departments. A learned 
commentator* supposes, in consequence of this clause, 
that Congress may require the consent of the Senate to 
such appointments : now this is not at all obvious; for 
the Constitution, after giving the appointment of superior 
officers to the President and Senate, may give the ap¬ 
pointment o^inferiors to whom? to this same President 
and Senate? No, but to the President the courts 

of law, or the heads of departrnents. After this express 
designation of these persons, it is not in the competen¬ 
cy of Congress to confer the appointment on others. 

§ 314. It is decided, in reference to the power of ap¬ 
pointments, that the Supreme Court cannot issue a man¬ 
damus to compel the delivery of a commission to an offi¬ 
cer after it is made out. This was so decided in a case^ 
in which the commission had been made out and depos¬ 
ited in the Secretary of State’s office, during the admin¬ 
istration of Mr. Adams, and on the accession of Mr. 
Jefferson he withheld it,—deeming^ that delivery was 
necessary to its perfection, and being himself unwilling 
to appoint the man. The case went off for want of 
original jurisdiction, but the court expressed the opin¬ 
ion, that the withholding the commission was a violation 
of a legal right. 

1 3 Story’s Comm. 397. ® 1 Cranch, 137. 

® 4 JefFerson’s Correspondence. 

11 


122 


CONSTITUTION OF 


§ 316. 3d clause. The President shall have power to 
Jill up all vacancies that may happen during the recess of 
the Senate, hy granting commissions which shall expire at 
the end of their next session. 

The appointments thus made expire at the end of the 
next term of the Senate by the constitutional limitation. 
Suppose the President should fill a vacancy during the 
recess of the Senate, and should then nominate this offi¬ 
cer to the Senate, and the Senate should reject him; and 
the President should, on the first day of the next recess, 
appoint him again to fill the vacancy, may he not in this 
manner perpetuate an appointment without the consent 
of the Senate? Certainly this cannot be the intention 
of the Constitution, for it would defeat the co-ordinate 
power of appointment which it has vested in the Senate: 
Yet such a practice* has in some instances recently ob¬ 
tained. Where is the remedy? Nobody is vested 
with power to annul the appointment; but it can be 
effectually restrained by withholding the appropriations. 
Here, then, is an instance of the signal virtue of pow¬ 
ers, effective and restraining, vested directly in the 
representatives of the people. 

§ 316. Docs the power to fill up vacancies give the 
President authority to appoint and commission ambassa¬ 
dors during the of the Senate? In this manner 

President Madison appointed the Commissioners to ne¬ 
gotiate the treaty of Ghent. But this is not a vacancy, 
neither does it happen, and the Senate held accordingly, 
in 1822, and decided, that the President could not cre¬ 
ate the office of minister during the recess of the Senate 
without the consent of the Senate. 

§317. Section 3d. He shall, from time to time give 
the Congress information of the state of the Union, and 
recommend to their consideration such measures as he 
shall judge necessary and expedient; he may, on extraor- 

* See the Journals of the Senate, 1830, 1831, 1832, 1833; cases of 
Gwynn and Gardner. 


THE UNITED STATES. 


123 


dinary occasions, convene both Houses, or either of them, 
and in case of disagreement heticeen them with respect to 
the time of adjournment, he may adjourn them to such 
time as he may think proper; he shall receive ambassadors, 
and other public ministers; he shall take care that the laws 
be faithfully executed; and shall commission all the ojf- 
cers of the United States. 

§ 318. The President, in conformity with the first part 
of this section, lays before Congress, at the first day of 
their session, a Message, in which is exhibited the oper¬ 
ations of the government during the past year, and which 
is accompanied with reports from the chief officers of 
government, illustrating the condition and prospects of 
each department of the government. In addition to 
which the President gives his opinion upon ail the mea¬ 
sures which, in his opinion, ought to be acted upon. 
During the administration of Presidents Washington 
and Adams, the President met Congress in person, and 
delivered oral speeches, to which answers were returned, 
similar to the mode still adopted by the constitutional 
governments of Europe. President Jefferson, however, 
abolished that custom, and ever since the message has 
been sent to Congress, and no answer returned. The 
President communicates to Congress all the new cir¬ 
cumstances, views, or information which may from time 
to time occur; and Congress, by calls upon the different 
departments, obtain all the documentary facts which 
they may desire. 

§ 319. The power to call an extraordinary session of 
Congress may become absolutely necessary to the pub¬ 
lic safety. There have been three extraordinary ses¬ 
sions called; one in 1797, by President Adams, on the 
occasion of the difficulties with France; another in 1809, 
by President Madison; and another in 1813, also by 
President Madison. 

§ 320. The President has a general authority to ex¬ 
ecute the laws; and in the exercise of his political du- 


124 


CONSTITUTION OF 


ties, independent of the specific limitations imposed 
by the law and the Constitution, he is subject to no 
control, but is amenable only to his conscience and his 
country. 

§ 321. As incident to the power of receiving^ ambas¬ 
sadors, the President has the power to reject and dis¬ 
miss^ them. 

§ 322. Incident to the executive functions is the 
power to perform them without let or hinderance.® 

§ 323. Section 4th. The President, Vice-President, 
and all civil qficers of the United States, shall he re¬ 
moved from office on impeachment for, and conviction 
of, treason, bribery, or other high crimes and misdemea¬ 
nors. 

In what mode this impeachment is to be made and 
tried, we have seen elsewhere. All officers are liable 
to this impeachment for offences, although there is no 
prohibition against other kinds of removal. 

1 Federalist, 69. 2 Case of Genet, 5 Marshall, 443. 

3 3 Story’s Comm. 419. 



THE UNITED STATES. 


125 


ARTICLE IIL 

JUDICIARY. 


§ 324. Section 1st. The Judicial power of the 
United States shall he vested in one Supreme Court, and 
in such inferior courts as the Congress may from time to 
time ordain and establish. The Judges, both of the Su¬ 
preme and Inferior Courts, shall hold their ojjices during 
good behavior, and shall, at stated times, receive for 
their sei'vices a compensation which shall not be diminish¬ 
ed during their continuance in ojjicc. 

§ 325. The Supreme Court is instituted by the Con¬ 
stitution, but receives its organization from Congress.* 
The Constitution left the number of the judges, the 
mode of its proceeding, and the character of its officers, 
to be subsequently determined by the Legislature. By 
successive acts,^ Congress have organized the Supreme 
Court by creating a Chief Justice and six Associate 
Justices, any four of whom make a quorum. It holds 
one annual term at the seat of government, and though 
four judges are necessary for general business, yet any 
one of them may make all the necessary orders prepar¬ 
atory to trial, and one judge attends annually at the 
city of Washington for that purpose. 

§ 326. The inferior courts organized by Congress 
are the Circuit and the District Courts. ^The Circuit 
Court is composed of one Judge of the Supreme Court 
and the District Judge, except when the District Judge 
is interested, when it may be held by the Circuit Judge. 
The number of Circuits is equal to the number of Su- 

1 1 Kent’s Comm. 279. 2 Acts of April, 1802; Feb. 1807, 

3 Kent’s Comm. 282. 

11 


126 


CONSTITUTION OP 


preme Judges, and are composed of two or three dis 
tricts generally, but some of the western states, as In¬ 
diana, Illinois, Missouri, &c., have no Circuit Courts. 

§ 327. Another Court, inferior to the Supreme Court, 
is the District Court.* This is composed of a single 
judge, who holds annually four terms, and special courts 
at his discretion. The districts are composed gener¬ 
ally of a single state, but sometimes of a part of a state, 
as in New-York and Pennsylvania. 

The judges hold their offices during good behavior. 
Any other provision than this would place them at the 
mei’cy of the other branches of the government. It is 
plain that the members of distinct branches of the gov¬ 
ernment must be wholly independent of the other 
branches, or the whole would soon become mixed up 
into one absorbing power. In the state of New-York, 
sixty is the age at which a judge’s office expires, and in 
Connecticut, seventy. These were both, however, 
provisions made to answer a temporary and party pur¬ 
pose. They are as anomalous in jurisprudence as they 
are contrary to the maxims derived from uniform expe¬ 
rience. Youth for energy and age for judgment are 
rules everywhere illustrated in human life. The ablest 
judges that ever adorned England and America, Mans¬ 
field and Marshall, gave their best decisions after the 
age of seventy. 

§ 328. Their compensation shall not be diminished 
while in office. This is obviously necessary. Life 
depends upon sustenance, and to take from the judges 
their salaries would drive them from office. 

§ 329. Clause 2. Section 2d. The judicial poiver shall 
extend to all cases in law and equity arising under this 
Constitution^ the laws of the United States, and treaties 
madcyor which shall be made, under their authority; to all 
cases affecting ambassadors, other public ministers, and 
consuls; to all cases of admiralty and maritime jurisdic- 
1 Kent’s Comm. 283. 


THE UNITED STATES., 


127 


tion; to controversies to which the United States shall 
be a party; to controversies between two or more states; 
between a state and citizens of another state; between 
citizens of differejit states; between citizens of the same 
state, claiming lands under grants of different states; 
and between a state, or the citizens thereof, and foreign 
states, citizens, or subjects. In such cases the appeal is 
to the state legislature. 

The 11th amendment to the Constitution declares, 
that The Judicial power of the United States shall not 
be construed to extend to any suit in law or equity, com" 
menced or prosecuted against one of the United States by 
citizens of another state, or by citizens or subjects of any 
foreign state. 

§ 330. 'The jurisdiction of the Supreme Court is here 
made coextensive with national objects, and independent 
of other branches of the government. ^‘There is no 
liberty if the judiciary power be not separated from the 
legislative and executive powers.”^ The Constitution 
and the laws of the United States are to bo construed 
and adjudged of by the Supreme Court. How could 
they be adjudged by the State Courts without at once 
making the States superior to the Union? Yet it must 
bo observed, that the state, as well as the other courts, 
have the power to construe United States and all other 
laws, when they come incidentally in question upon the 
trial of a cause. 

§ 331. All matters in relation to treaties, public min¬ 
isters and consuls, admiralty and maritime Jurisdiction, 
come under the sole cognizance of the Supreme Court. 
These things belong to the laws of nations; hence.,, 
only a national court can sit upon them. The Supreme 
Court is the national court of the United States, and in 
this single clause, we see at once the wide distinction 
placed by thc^ Constitution between the United States’ 
Courts and the State Courts. By this, taken in con- 
1 Montesquieu’s Esprit de Loix, book 11, chap., 6. 


128 


. CONSTITUTION OF 


nexion with the other clauses upon the jurisdiction of the 
Supreme Court, and the prohibitions upon the states, the 
Supreme Court is made a national, while the State 
Courts are merely municipal courts. 

§ 332. The next sentence is in perfect conformity to 
this principle; for if the Supreme Court be national, it 
is the proper arbiter between the different States, and in 
relation to all controversies which involve the rights 
and laws of different states. Accordinglyj the Consti¬ 
tution gives the court jurisdiction of controversies be¬ 
tween two or more states; between a state and the citi¬ 
zens of other states, or foreign states when the state is 
not defendant; and between citizens of the same state, 
claiming under grants of different states. The simple 
reading of these provisions is a sufficient answer to 
every theory which supposes that the states have suffi¬ 
cient power to annul the laws of the Union. In this 
article a tribunal is erected superior to all state courts, 
and by the express direction of the Constitution, a com¬ 
petent arbiter between the states themselves. “There 
must be some tribunal, than which there can be no 
higher,” is an axiom self-evident in all governments 
which purport to have system and stability; for without 
it they must become mere anarchies. In the Supreme 
Court, the Constitution has established that tribunal in 
the United States, and it is manifest, that within its 
jurisdiction, pointed out by the Constitution, it is above 
all others. When we go behind this, there is nothing 
left but the people, —whose work the Constitution itself 
is,—but, who cannot be appealed to against their own 
laws, till they have first resolved those laws to be a nul¬ 
lity, and themselves into a state of nature. This is a 
right which is left to all people of all nations, savage 
and civilized,—the right of rehellion, —never to be ex¬ 
ercised till sufferance is exhausted. Provision is madcj 
as we shall see hereafter, for amending the Constitution, 
but this presupposes a constitution, and a government; 


THE UNITED STATES. 


129 


this amendment, then, in the forms prescribed by the 
Constitution, is not the exercise of that ultimate right 
we have spoken of above. 

§ 333. But, while it is affirmed that the Supreme 
Court is the ultimate tribunal, it must be borne in mind 
that the functions of a court are to say what the lam is, 
and not to make it. They are judges, not lawgivers. 
<‘The judicial department has no will in any case. 
Judicial power, as contradistinguished from the power 
of the laws, has no existence. Courts are the mere in¬ 
struments of the law, and can will nothing.”* 

§ 334. In the clause above, the phrase is read ‘‘all 
cases in law or equity.” The reference here is plainly 
to those common law distinctions of law and equity reme¬ 
dies, which before existed in the jurisprudence of Eng¬ 
land and this country. So far as the remedies go, 
the Constitution recognises the existence and the ope¬ 
ration of the common law.^ And it would seem, as the 
reference is direct to the remedy at common law, that 
the principles upon which the remedy is to be applied 
must be the same; and such is the interpretation and 
mode of administering justice in such cases in the courts 
of the United States. What is a case as here contem¬ 
plated? A case is a suit in law, or equity, instituted 
according to the regular course of judicial proceedings; 
and when it involves any question arising under the 
Constitution, laws, or treaties of the United States, it is 
•►within the judicial power confided to the Union. 

§ 335. To understand the jurisdiction of the Su¬ 
preme Court, we must consider the next clause of this 
section, which is, 

2d clause— In all cases affecting ambassadors, other 
public ministers, and consuls, and those in which a state 
shall be a party, the Supreme Court shall have original 

1 Osborn vs. Bank United States, 9 Wheaton’s Rep. 866. 

2 3 Story’s Comm. 506. 

3 Id. 507; 1 Tucker’s Blk. Comm. App. 418, 420; Madison’s Vir¬ 
ginia Resolutions, 1600. 



130 


CONSTITUTION OF 


jurisdiction. In all the other cases before mentioned^ 
the Supreme Court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions and such regu¬ 
lations as the Congress shall make. 

§ 336. Jurisdiction may be considered, 1st, With 
reference to the parties; 2dlyj In relation to the subject 
matter; and 3dlyj In respect to realm or locality. 

' 1st. Jurisdiction in reference to the parties. The 
pa?'ties who come within the jurisdiction of the Supreme 
Court, are, 1. Ambassadors, public ministers, and con¬ 
suls; 2. The United States; 3. The States; 4. Citi¬ 
zens of different States; 5. Citizens of the same state; 
6. Foreign states, citizens, or subjects. 

§ 337. 1. Ambassadors, public ministers, and con 
sills. The grades of public ministers, and the laws 
which apply to them, we shall see in another place.‘ 
The rights, duties, powers, and privileges of public 
ministers are determined, not by municipal constitutions, 
but by the law of nature and nations, which is equally 
obligatory upon all nations. Consuls are not strictly 
ministers, hut merely commercial agents. The Constitu¬ 
tion, however, has, in relation to the courts, placed them 
upon the same level as ministers. In cases against min¬ 
isters and consuls, the jurisdiction is supposed exclusive.^ 

The indictments found against persons for offering 
violence to ministers, &c., and their servants, do not 
come within the scope of the phrase, affecting ambas¬ 
sadors, &c. &c. The minister is not a party to the 
record.® Yet if he be not a party, the case may be one 
which affects him in interest, and the court has decided 
that in such a case it has jurisdiction. 

§ 338. 2. The United States. To enforce the rights 
of the United States, they must sue either in their own 
courts, or those of the states. In the latter they would 
at once be subject to the states, the very end which the 

* Chapter on the Practical Operation of the Government. 

2 I Kent’s Comm. 44. 3 3 Story’s Comm. 524. 


THE UNITED STATES. 


131 


Constitution was formed to prevent. In their own 
courts they could enforce their own rigMs, and have a 
uniform rule of justice. TJie latter, therefore, was 
adopted. The clause which conferred this jurisdiction 
on the Supreme Court gave no power to individuals to 
bring suit against the United States, nor have they or 
the states any such power. It is inherent in the nature 
of sovereignty not to bo amenable to any private person." 
The same exemption extends to every state in the 
Union.2 What remedy, then, has the citizen against the 
national government for injustice and injury? If it be 
an oppression exercised by public functionaries upon the 
body of the people, the people have, through the Con¬ 
stitution, the power of removing them. If the oppression 
be in the exercise of unconstitutional powers, the func¬ 
tionaries who wield them are amenable for their injuri¬ 
ous acts to the judicial tribunals of the country, at the 
suit of the oppressed.^ 

§ 339. The government is, in itself, incapable of a 
personal lorong, such as assault and battery, and personal 
violence.In respect to pi-operty, the remedy lies 
against the immediate perpetrators, who cannot shelter 
themselves under an agency from the government. 
Such agent, like every other violator of the laws, must 
refund in damages to the injured party.® 

§ 340. In the case of contracts, however, the agent 
is not responsible when lawfully made, and the govern¬ 
ment cannot be sued; hence, the only remedy is by 
legislative interposition,—an appeal to Congress. This 
may be justly considered as a defect upon the part of 
Congress, who have the right to provide a mode of 
settling private rights. In this respect, as in every 
other concerning justice between public and private 
rights, the contrast between us and the government of 
England is strongly against us. There the subject is 
allowed to bring what is called a petition of right before 

^Story’s Comm. 538. 2 Ibid. 3 Ibid. 539. ^ Ibid. « Ibid. 


132 


CONSTITUTION OP 


the Chancellor, who as a matter of duty, hears it, and 
administers right according to the factd 

§ 341. 3. Another class of parties under the juris¬ 
diction of the Supreme 'Court are the States. The pro¬ 
vision subjecting the states to the jurisdiction of the 
Supreme Court, brings them at once within the sover¬ 
eignty of the Union, even if all the powers before vested 
in the national government had not. This jurisdiction 
is frequently exercised, and although the states have 
often been much irritated, yet they have uniformly sub¬ 
mitted. As the amendment to the Constitution has 
taken the states out of the jurisdiction of the Supreme 
Court when the suit is against them by individuals, it 
becomes important to inquire when a state is to be 
deemed a party, so as to avail itself of this exemption? 
‘^A state is a party only when it is on the record as 
such, and sues or is sued in its political capacity.”^ It 
is not sufficient that it has an interest in the suit, as be¬ 
tween other persons, or that its powers and duties come 
incidentally in question.^ The same principle applies 
to incorporations under the state; thus an incorporated 
bank, in which the state is stockholder, is suable, al¬ 
though the state is exempt from the action.^ “As a 
member of a corporation, a government never exercises 
its sovereignty.” 

§ 342. it is laid down as “a rule, which admits of no 
exception, that in all cases under the Constitution of the 
United States, where jurisdiction depends upon the party, 
it is the party named on the record.” 

§ 343. 4. The next class of parties are “Citizens of 
different states.” The first inquiry here is, who is a 
citizen of a state, and how does he change his citizen¬ 
ship? Does it depend upon his domicil, or residence, 
or upon any other principle? Judge Story has answered 

' 3 Story’s Comm. 541. 2 idem 549. 

® 3 Dali, R. 411; United States vs. Planter’s Bank of Georgia, 
9 Wheaton, 904. 4 Story’s Comm. 565. 


THE UNITED STATES. 


133 


these questions in his commentaries in a very satisfac¬ 
tory manner. “ The Constitution,” says the commenta¬ 
tor, “having declared that the citizens of each state shall 
he entitled to all the privileges and immunities of citi¬ 
zens in the several states, every person, who is a citi¬ 
zen of one state, and removes into another, with the 
intention of taking up his residence and inhabitancy 
there, becomes in reality a citizen of the state where he 
resides; and he then ceases to be a citizen of the state 
from which he has removed his residence.”^ What cir¬ 
cumstances constitute such a change of residence? A 
removal from one state into another, with an intention 
of remaining^ constitutes a change of residence, and con¬ 
sequently of citizenship.2 But a native citizen of one 
state never ceases to be a citizen thereof till he acquires 
a new citizenship elsewhere. Residence® in a foreign 
country does not change his citizenship. Every citizen 
of a state is a citizen of the United States.A natural¬ 
ized citizen, by a residence in any state in the Union, 
becomes a citizen of that state. So a citizen of a ter¬ 
ritory, by a residence in a state, acquires the character 
of the state where he resides.* 

§ 344. But a naturalized citizen of the United States, 
or a citizen of a territory, does not become a citizen en¬ 
titled to sue in the courts of the United States, by such 
residence in a territory, nor until he has acquired a resi¬ 
dence in a particular state.® 

§ 345. 5. A corporation, as such, is not a citizen of 
a state in the sense of the Constitution: but if all the 
members of the corporation are citizens, their character 
will confer jurisdiction.^ A citizen may sue, who is 
trustee, executor, or administrator for another. 

§ 346. Citizens of the same state may be parties, 

' 3 Story’s Comm. 565. 2 id. 3 1 Kent’s Comm. Sect. 4. 

4 3 Story’s Comm. 565. 5 id. 566; 6 Peters’ Supreme C. R. 761. 

6 1 Kent’s Comm. 360; 1 Wheaton’s R. 91. United States 

vs. Planter’s Bank, 9 Wheaton, 410; 8 Wheaton, 668. 

12 


134 


CONSTITUTION OF 


when they claim under grants of different states. This 
is the only case in which the Constitution gives juris¬ 
diction directly to the Federal Courts, over cases be¬ 
tween citizens of the same state. The reason is, that it 
contemplates a case in which the laws and boundaries 
of different states are brought into question, and upon 
which, therefore, the state tribunals are not unbiased. 

§ 347. 6. “Foreign states, citizens, and subjects” 
may be parties. Who is a foreign citizen or subject? or 
who is an alien? Any person who is not a citizen of 
the United States is an alien. But when he is natural¬ 
ized, he is no longer an alien; fbr this is a case provided 
for by the Constitution and the laws: and it makes no dif¬ 
ference whether he sues in his own name or as a trustee. 

§ 348- A foreign corporation established in a foreign 
country, all of whose members are aliens, can sue in the 
same manner. 

§ 349. The jurisdiction vests, however, only when 
one party to a suit is a citizen.* Alien enemies, how¬ 
ever, cannot sue; their right is suspended until peace. 

§ 350. Jurisdiction in relation to the subject matter 
is Original, or Appellate. 

The court has original jurisdiction in all cases con¬ 
cerning ambassadors, public ministers, and consuls, and 
those in which a state is the party; in all others it has 
appellate jurisdiction, both as to law and fact, under such 
regulations and exceptions as Congress shall make. 
This jurisdiction cannot, by the words of the Constitu¬ 
tion, be exercised without the intervention of Congress; 
but Congress are bound by that part of the clause which 
refers to “ all cases,” to confer all the jurisdiction granted 
by the Constitution, in some form or other, upon the 
Supreme Court. By the act of September, 1789, this 
was done, and the Supreme Court have exercised their 
appropriate powers uninterruptedly since. 

§ 351. This original jurisdiction is confined to the 
» Story’s Comm. 571. 


THE UNITED STATES. 


.135 

enumerated cases, and cannot be enlarged by Congress. 
Congress cannot give it appellate jurisdiction, when the 
Constitution has given it original, nor original where it 
has appellate jurisdiction.^ The grant of original juris¬ 
diction is exclusive, and negatives any enlargement. 

§ 352. Whether the original jurisdiction vested in the 
Supreme Court may not be exercised concurrently by 
the inferior courts, is an undecided point.^ 

§ 353. Another question is, whether the court can 
exercise appellate jurisdiction in those cases where it 
has original jurisdiction and it is thought it can. 

§ 354. What is appellate jurisdiction? <‘The essen¬ 
tial criterion of appellate jurisdiction is, that it revives 
and corrects the proceedings in a cause already insti¬ 
tuted, and does not create that cause.” The appellate 
jurisdiction may be exercised in a variety ol forms ,— 
indeed in any form which the Legislature may prescribe. 
But the substance must exist before the form can be 
applied. Where the object is to review a-judicial pro¬ 
ceeding, the mode is immaterial; and a writ of habeas 
corpus, or mandamus, a writ of error, or an appeal may 
be used, as the Legislature may prescribe.^ 

§ 355. The most usual modes of exercising appellate 
jurisdiction are writs of error, appeals, or some process 
of removal.^ An appeal removes the entire cause, fact, 
or will, or law for a review and new trial. A writ of 
Error removes nothing for re-examination but the law, 
§ 356. The appellate jurisdiction of the Supreme 
Court extends to the decisions of the State Courts. By 
the act of September 1789, Sect. 25, it is declared that 
' the final judgment or decree of the state courts may be 
re-examined and reversed, or affirmed in those cases in 
which is drawn in question the validity or construction 

^ 3 Madison vs. Marbury, 1 Cranch, 137; 1 Kent’s Comm. 302. 

2 11 Wheaton, 4G7. ® 3 Story’s Comm. 576. 

< Id.; 6 Wheaton’s Rep.; 2 Peters’ Supreme C. R. 449; IngersolPs 
Digest, 375. 5 3 Dallas, 342; 1 Wheaton, 304. 


136 


CONSTITUTION OF 


of a treaty, and the decision is against the right, title, 
or privilege set up, or claimed under it; or where is 
drawn in question the validity of a statute, or an author^ 
ity exercised under a state, on the ground of their being 
adverse to the Constitution, treaties, or laws of the 
United States, and the decision is in favor of their val¬ 
idity. Such cases may be brought up on writ of Error; 
and such writ has the same effect as if directed to the 
Circuit Court of the United States. 

§ 357. Hence, if the highest court in a state reverse 
the judgment of a subordinate court, and, on appeal to 
the Supreme Court of the United States, the judgment 
of the highest court in a state be reversed, it becomes 
a nullity, and a mandate issues to the inferior court for 
execution.^ The record in such cases must show the 
error, by showing some act of jurisdiction. 

§ 358. Jurisdiction in respect to locality. Here we 
may consider, 1st, Within what boundaries the author¬ 
ity of the United States Courts is limited; 2d, The mar¬ 
itime and admiralty jurisdiction of the courts. 

§ 359. 1. What are the territorial limits of jurisdic¬ 
tion? The limits of jurisdiction, as it respects the Su¬ 
preme Court, are the limits of the United States, for the 
decisions of all other courts, whether territorial, district, 
or state, are within the rules as to subject and parties 
already laid down and are subject to revision in that tribunal; 
except that, in the Territorial Courts, no appeal lies from 
their decisions without a special statutory provision. The 
territories are under the sole, and absolute control of 
Congress.2 

§ 360. The district court has cognizance of crimes 
and offences, which are cognizable by the United States 
tribunals, and which are committed within the respec¬ 
tive districts, or on the high seas. 

§ 361. The District Courts have also admiralty and 
maritime jurisdiction on the high seas, and also within 

1 3 Dallas, 342; 1 Wheaton, 304. 2 i Kent’s Comm. 360. 


THE UNITED STATES. 137 

waters leading from them, and in which vessels of ten 
tons burden may navigate.^ ^ 

§ 362. The concurrent jurisdiction of the state and 
national courts has also been a subject of some diffi¬ 
culty. 

It is settled, that no part of the criminal jurisdiction 
of the United States can be delegated to state tribunals: 
and the admiralty and maritime jurisdiction is of the 
same exclusive cognizance. It can only be in those 
cases where, previous to the Constitution, state tribu¬ 
nals possessed jurisdiction independent of national au¬ 
thority, that they can now exercise a concurrent juris¬ 
diction.^ 

§ 363. State courts may, in the exercise of their or¬ 
dinary jurisdiction, incidentally take cognizance of cases 
arising under the Constitution, laws, and treaties of the 
United States: but the United States courts have appel¬ 
late jurisdiction. 

§ 364. Where the jurisdiction is concurrent, the sen- 
tence of either court, whether of conviction or acquittal, 
may be pleaded in bar of a prosecution before the other. 
So also the judgment of a state court in a civil case of 
concurrent jurisdiction, may be pleaded in bar of an ac¬ 
tion for the same cause, instituted in a Circuit Court of 
the United States.^ 

§ 365. The conclusion then is, that in judicial mat¬ 
ters the concurrent jurisdiction of the state tribunals 
depends altogether upon the pleasure of Congress, and 
may be re\'oked and extinguished whenever they think 
proper, in every case in which the subject matter can 
constitutionally be cognizable in the federal courts; and 
that, without an express provision to the contrary, the 
state courts will retain a concurrent jurisdiction in all 
cases where they had jurisdiction originally over the 
subject matter.”'* 

1 Act of Sept. 1789. 2 i Kent’s Comm. 372; 1 Wheaton, 304. 

^5 Wheaton, 1. 4 1 Kent’s Comm. 374. 

12 '' 


138 


CONSTITUTION OF 


§ 366. Various acts of Congress give jurisdiction to 
state courts and magistrates in both civil cases, and for 
fines and forfeitures under the laws of the United States; 
but the state courts are not bound to assume jurisdiction 
in such cases.* 

§ 367. It has been questioned whether the state 
courts could issue a Habeas Corpus, and exercise juris¬ 
diction in a case where the imprisonment was by an 
officer of the United States, or under pretext of the au¬ 
thority of the United States. The state courts, how¬ 
ever, have exercised such jurisdiction, although no final 
decision has been had upon the question.^ 

§ 368. No state court can issue an injunction upon 
any judgment in a court of the United States nor can 
the state legislature annul the judgments, or destroy 
the rights acquired under them, or determine the extent 
of their jurisdiction.^ Nor can a state court, or author¬ 
ity, prescribe the rules or forms of proceedings, nor ef¬ 
fect of process in the courts of the United States:® nor 
issue a mandamus to an officer of the United States to 
compel him to perform duties devolved upon him by the 
laws of the United States.® 

§ 369. On the other hand, the national courts have 
no authority (in cases not within the appellate jurisdic¬ 
tion of the United States), to issue injunctions upon 
judgments in the state courts; or in any manner to in¬ 
terfere with their jurisdiction and proceedings.”*' 

§ 370. It is a question unsettled, whether the United 
States courts have a Common Law jurisdiction? In the 
case of the United States v>s. Hudson & Goodwin,® tried 
for a libel on the President, the Supreme Court decided, 
by a majority, that they had no Common Law jurisdic- 

* 1 Kent’s Comm. 375. 

2 Idem; 10 Johnson’s Rep. 328; 5 Hall’s Law Journal, 82; 11 Mass. 
Reports, 68 . 3 3 Story’s Comm. 624; 7 Cranch, 279, 

4 5 Cranch, 115. 5 10 Wheaton, 21, 22, 51. 

6 6 Wheaton, 598, 3 Story’s Commentaries, 626, 

8 7 Cranch, 32, 


THE UNITED STATES. 


139 


tion. In the ease of the United States vs. Coolidge,^ 
the Circuit Court for Massachusetts decided it had such 
jurisdiction in admiralty cases. The Supreme Court, 
however, adhered to their former opinion. In conse¬ 
quence of this division, and the opinions of different 
commentators, this point is not wholly settled.^ 

§ 371. Another extensive subject of discussion in the 
courts of the United States, is the admiralty and mari¬ 
time jurisdiction of the District Courts. 

The District Courts act as courts of Common Law, 
and also as courts of Admiralty. In England a differ¬ 
ence existed between the Instance and Prize Courts. 
The former is defined^ to be the ordinary admiralty 
court, and the latter an extraordinary one, having juris¬ 
diction only in time of 7car, and in prize cases. In the 
United States, however, the Supreme Court have deter¬ 
mined that the District Courts have all the powers of 
courts of admiralty, whether as instance or prize 
courts.** 

§ 372. Chancellor Kent, who has made law classical 
in our country, has given a brief review of the powers 
of these courts, .which may he stated in the follow ing 
propositions. 

1. As to the jurisdiction of Prize Courts. Thepi'ize 
jurisdiction extends to all captures in tear made on the 
high seas. Prize goods are goods taken on the high 
seas by right of war, out of the hands of the enemy.® 
The prize jurisdiction also extends to captures in for¬ 
eign ports and harbors, and to captures made on land 
by naval forces. It extends to captures made in rivers, 
ports, and harbors of the captors’ own country. The 
prize court extends also to all ransom hills upon cap¬ 
tures at sea, and to money received as ransom or com¬ 
mutation on a capitulation to naval forces.® 

§ 373. If the prize be unwarrantably carried into a 

1 1 Gallison, 188. 2 1 Kent’s Comm. 315. * Idem. 331. 

4 3 Dallas, 6. ^ I Kent’s Comm. 334 ® Idem. 335. 


140 


COIN’STITUTION OF 


foreign port, and there delivered by the captors upon 
security, the prize court does not lose its jurisdiction 
over the capture and the questions incident to it. So, 
if the prize be lost at sea, or actually lying within^ for¬ 
eign neutral territory, the court has jurisdiction.* 
Prize courts act upon the thing instead of the person, 
and that notwithstanding any contract between the par¬ 
ties.^ Prize courts have likewise exclusive jurisdiction 
and discretion as to the allow ance of freight, damages, 
expenses, and costs in all cases of capture, and as to all 
torts and personal injumes connected w’ith captures.® 

2. Criminal Jurisdiction of the Admiralty. The Act 
of September, 1789, gives to the District Courts, exclu¬ 
sive of the State Courts, and concurrent with the Cir¬ 
cuit Courts, jurisdiction over crimes and offences cogni¬ 
zable by the authority of the United States, and com¬ 
mitted within their districts, or upon the high seas, 
where only a moderate corporal punishment, or fine, or 
imprisonment is to be inflicted. As this confers juris¬ 
diction. only in minor crimes, it was a question whether 
the courts had any jurisdiction over cases (Amurder, &c. 
In the case of the United States against M’Gill,^ it was 
decided they had not. The same w as deckled in Uni¬ 
ted States vs. Bevans.® It is now settled, that the fed¬ 
eral courts, as courts of admiralty, are to exercise 
such criminal jurisdiction as is conferred upon them 
expressly by acts of Congress, and they are not to ex 
ercise any other.** 

This limitation, how^ever, does not extend to private 
prosecutions in the District Court to recover damages 
for a marine tort. 

§ 374. As to the division hetween the jurisdiction of 
the Admiralty and the courts of Common Law. 

On the sea-shore, the jurisdiction of the admiralty is 

11 Kent’s Com. 336. 2 id. 337. » Idem. 

4 4 Dallas, 426. e 5 Wheaton, 76. 

^ 1 Kent’s Commentaries, 341, 


THE UNITED STATES. 


141 


limited to low-water mark,^ and between that and high- 
water mark, where the sea ebbs and flows, the common 
law and admiralty have a divided jurisdiction. 

§ 375. In the Circuit Court of the United States it 
has also been decided, that the admiralty jurisdiction 
extends to all maritime contracts, torts, injuries, and 
oftences on the high seas, and in ports and havens, as far 
as the ebb and jiow of the tide.^ 

It has been asked what cases come within the mean¬ 
ing of admiralty, and what of common law jurisdiction? 
It is now settled that all seizures under laws of import, 
navigation, and trade, if made upon tide-waters nav¬ 
igable from sea, are civil cases of admiralty jurisdic¬ 
tion.^ 

§ 376. The admiralty and maritime jurisdiction of 
the District Courts is exclusive. The Constitution ex¬ 
tends the judicial authority of the United States to all 
cases of admiralty jurisdiction, and the act of Congress 
enacts, that the District Courts shall have exclusive ori¬ 
ginal cognizance of all civil causes of admiralty and 
maritime jurisdiction. 

4. Jurisdiction of the Instance Courts. 

§ 377. The Instance Courts take cognizance of 
crimes committed, and things done, and contracts not 
under seal, made on the bosom of the sea.‘‘ The cause 
must arise wholly upon the sea to be within the admiralty 
jurisdiction. If the act be done partly on land and part¬ 
ly on water, the Common Law has the preference. 

§ 378. The admiralty has cognizance of maritime 
hypothecations® of vessels and goods in foreign ports, 
for repairs done, or necessary supplies furnished. 

§ 379. If the admiralty has cognizance of the prin¬ 
cipal thing, it has also of the incident. Thus, goods 
taken by pirates and sold on land, may be recovered 
from the vendee by suit in admiralty. 

1 1 Kent’s Commentaries, 343. ^ 2 Gallison, 398. 

31 Kent’s Comm. 349. ^ Idem. 352. ® Idem. 


142 


CONSTITUTION OF 


The proceedings in admiralty are according to the 
course of the civil law, and are brief and simple.* 

§ 380. “The Supreme Court shall have appellate 
jurisdiction both as to law and fact.” This clause was, 
at first, supposed to confer the power of reviewing the 
verdicts of juries on matters of fact. This was not, 
however, the case. “The real object of the provision 
was to retain the power of reviewing the fact as well as 
the law in cases of admiralty and maritime jurisdic¬ 
tion.” ^ This subject is now settled conclusively by 
an amendment to the Constitution, in the following 
words: 

“ In suits at Common Law, where the value in contro¬ 
versy shall exceed twenty dollars, the right of trial by 
jury shall he preserved; and no fact tried by jury shall 
he otherwise re-examined in any court of the United 
States than according to the rules of the Common Law.^'^ 

This at once prohibits the re-examination of facts 
already tried by jury in any other manner. 

The only modes known to the Common Law to re¬ 
examine such facts are—1st. The granting a new trial 
by the court where the issue was tried, and 2d, by a 
Writ of Error, for an error in law, by some appellate 
court; neither of these includes the power of re-exam¬ 
ining facts already tried by another court. 

§ 381. The appellate jurisdiction is to be with such 
exceptions and regulations as “ the Congress shall pre¬ 
scribe.” But here a question is asked, whether the ju¬ 
risdiction attaches to the Supreme Court in its own na¬ 
ture, to be modified by Congress, or whether an act of 
Congress is necessary to confer that jurisdiction? If 
Congress have the power they may repeal it, and thus 
destroy the whole efficacy^ of the court. It was form¬ 
erly decided by the Supreme Court, that if Congress 
provided no rule to regulate their proceedings, they 

1 1 Kent’s Comm. 354; 3 Story’s Comm. 629. 

2 3 Peters’s Rep. 44G. 3 3 Story’s Comm. 648. 


THE UNITED STATES. 


143 


could exercise no jurisdiction. That decision has, how¬ 
ever, been since overruled, and it is asserted by the 
Supreme Court, that without any limitation of powers 
by an act of Congress, it must possess all the jurisdic¬ 
tion which the Constitution assigns it. The appellate 
powers of the Supreme Court are given by the Consti¬ 
tution, and not by the judicial act.* But they are reg¬ 
ulated and limited by that act. 

§ 382. There are certain incidental powers which are 
attached to all courts without the necessity of an enact¬ 
ment. 

The functions of the judges are strictly judicial. 
They cannot be called upon to advise the President, or 
to give extra-judicial opinions, or to act as commission¬ 
ers, or other like matters. 

Thus also the courts have power over their own offi¬ 
cers, and the power to protect them and their members 
from being disturbed in the exercise of their functions. 
All courts have the power to attach for contempts, and 
by means of this they can protect themselves. 

§ 383. 3d clause. The trial of all crimes, except in 
cases of impeachment., shall he hy jury; and suck trial 
shall be held in the state where the said crimes shall hare 
been committed. But when not committed within any state, 
the trial shall he at such place or places as the Congress 
may by law have directed. 

^ 384. In connexion with this must be taken the 
amendments on the same subject, as follows: 

Amendment 5th. No person shall he held to answer 
for a capital, or otherwise infamous crime, unless on a 
presentment, or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the 
militia when in actual service, in time of war or public 
danger; nor shall any person he subject, for the same 
offence, to he twice put in jeopardy of life or limb; nor 
shall he compelled in any criminal case to he a witness 
* 6 Cranch, 307, 313. 


144 


CONSTITUTION OF 


against himself; nor he deprived of life, liberty, or 
property, without due process of law, nor shall private 
property he taken for public use without just compensa¬ 
tion. 

§ 385. Amendment 6th. In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury of the state and district 
wherein the crime shall have been committed; 

§ 386. The right to a trial by jury is of very ancient 
date. It was firmly established, however, in the 
Magna Charta, granted at Runneymede.^ In that 
instrument it is declared, that no freeman shall be in¬ 
jured in person or property except by the judgment of 
his peers, or the law of the land. From that time to 
this it has descended unimpaired through the govern¬ 
ments of England and this country. It is esteemed, 
and correctly, the most precious right of freemen; for it 
enables them to appeal from the arbitrary judgments of 
either governments or individuals, to the disinterested 
verdicts of their equals. The term^jcers means equals, 
and a judgment by his peers is one by his equals. The 
verdict, then, is given by those who are not only neigh¬ 
bors, but taken from the same rank and circumstances 
of life, and influenced by all the sentiments of justice or 
humanity which may be supposed to actuate persons 
placed in similar situations, and liable to the same con 
tingcncics. 

§ 387. The trial of all crimes must also be in the 
state where it is committed. This is to avoid the difh- 
CLilty, expense, and oppression which might happen from 
being carried into other states, and before foreign tribu¬ 
nals.^ 

Before a person can be tried for a crime, he must first 
be charged by a Grand Jury with the offence. This 
charge is in the form of a presentment, or indictment. A 
Grand Jury is a number of men, not less than twelve, 
* 3 Blackstone, 350. 2 3 Story’s Comm. 655. 


THE UNITED STATES. 


145 


nor more than twenty-three, of whom twelve must agree 
in the charge, selected in the manner of other juries, 
from the body of the people within the county where 
they are summoned.* They are sworn to make diligent 
inquiry of all offences committed against the authority 
of the government, and the peace of the state within the 
body of their county. In the United States Courts they 
are sworn to inquire and present all offences against the 
national government^ and within its jurisdiction. When 
the grand jury are assembled, the proper officer, com¬ 
monly the District Attorney for the state, lays before 
them all the offences of which he has any knowledge, 
and the evidence by which the charges against the pris¬ 
oners are supported. They examine this carefully, and, 
if they find the testimony probable, and sufficient to in¬ 
duce a rational belief in the charges, they find what is 
called a hill, or an indictment, and indorse on it A true 
hill. This bill or indictment is a formal charge of the 
offence against the prisoner, usually drawn up by the 
attorney for the state. If the grand jury do not find 
the bill true, they indorse on it “Woi a true hill,'^'^ and 
the prisoner is discharged; but a new bill may be found 
by a new jury.^. The indictment must charge person, 
time, pla,cc, and nature of the offence with clearness and 
certainty; otherwise it will be void for uncertainty. 

§ 388. It is also provided, that no person shall be 
twice put in jeopardy of life or limb for the same 
offence. The meaning is, that no person shall be twice 
tried for the same offence: it is also added, that this 
can only be pleaded when there has been an actual ver¬ 
dict and judgment, and not when the jury have been 
dismissed for want of agreement, or a new trial 
granted.^ 

§ 389. No person can be compelled to be a witness 
against himself, or be deprived of life, liberty, or proper¬ 
ty, without process of law. This is merely an affirm- 
1 4 Blackstone, 302. * 3 Story’s Comm. 658. * Id. 659. 

13 


146 


CONSTITUTION OF 


ance of the Common Law, as is also the former pro¬ 
vision. In fact nearly the whole of these amendments 
in relation to trial by juries, were common law privileges, 
but inserted, no doubt,Jbr more absolute certainty, and 
that no doubt should ever be permitted to enter the 
minds, as to this subject, of either lawgivers or judicial 
expositors. 

§ 390. One of these re-enactments of the Common 
Law is, that no‘private property shall he taken for public 
use without just compensation: yet plain justice as this is, 
it is frequently violated in this country by indirect 
means, and shows how difficult it is to preserve private 
rights when the people at large are interested against 
them: thus, private land is frequently taken for public 
works, streets, highways, canals, &c.; the owners are 
remunerated by an appraised valuation, not of what the 
property is worth in itself, but with the additional cir¬ 
cumstance of its inci'eased value, by an improvement 
which the owner never desired, and in his judgment, 
is injurious to his interests. The plain rule of jus¬ 
tice is, to pay the actual value, without reference 
either to the increase or diminution of value in the resi¬ 
due. 

§ 391. The trial by jury is public, in the presence of 
both the prisoner and the witnesses. The accused is en¬ 
titled to compulsory process to obtain witnesses, and is 
also entitled to have counsel. This provision was in¬ 
serted because, by the ancient common law the prisoner 
had not that privilege, but acquired it by a statute of 
William and Mary.‘ Indeed, the criminal jurisprudence 
of England, previous to that time, was, except the trial 
by jury, conducted with the greatest disregard of justice. 
Neither had the prisoner the benefit of counsel, though 
as the maxim ran, the judge is his counsel, and bound 
to see him have equal advantages with the accuser. 
This discreditable injustice on the part of the Common 
1 S Story’s Comm. 663. 


THE UNITED STATES. 


147 


Law is, however, entirely done away by these pro¬ 
visions of the Constitution. 

§ 392. Section 3d. 1st clause. Treason against the 
United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid 
and comfort. No person shall he convicted of treason 
unless on the testimony of two witnesses to the same overt 
act, or on confession in open court. 

2d clause. The Congress shall have power to declare 
the punishment of treason; hut no attainder of treason 
shall work corruption of hlood, or forfeiture, except 
during the life of the person attainted. 

Treason is some act whose object is the overthrow of 
the government: hence it is the highest crime against 
society, and universally regarded with odium and re¬ 
sentment. The definition of what is treason, and what 
is necessary to conviction, is of vast importance to the 
peace of society, and the liberty of the citizen. Con¬ 
structive or implied treason, from suspicious circum¬ 
stances, is dangerous wherever it exists. In the 
reign of Edward III. in England, a statute was passed 
declaring and defining treason and its different branch¬ 
es.* This was confirmed by the statute of Mary I. Our 
Constitution has used the very words of this statute, and 
thus adopted its definition, with the interpretation which 
it has received during several centuries. The war must 
be actually levied to constitute treason. A conspiracy 
to levy war is not treason.^ 

§ 393. The punishment of treason in our country is 
simply death by ijanging; at the Common Law it was 
accompanied by many barbarities, which would not 
now be tolerated. 

§ 394. By corruption of hlood is meant the destruc¬ 
tion of all inheritable qualities; —so that no one can 
claim any thing from a person attainted, or through him. 

* Hawkins, p. 6, book I. chap. 1-7. * 4 Cranch, 126. 


148 


CONSTITUTION OF 


A son could not claim from a grandfather, deriving title 
through a father that was attainted.* 

§ 395. A state cannot take cognizance of or punish 
the crime of treason^ against the United States. As 
treason is a crime whose object is to overthrow the gov¬ 
ernment, and the government of the state is guarantied 
by that of the United States, it follows, there can be no 
treason against a state, which is not also treason against 
the United States, and consequently, the crime of trea¬ 
son cannot be punished by the states. 


\ 


r ARTICLE IV. 

' MISCELLANEOUS. 

, § 396. Section 1st. Full faith and credit shall he giv¬ 
en in each state to the 'public acts, records, and judicial 
proceedings of every other state. And the Congress may, 
hy general laws, prescribe the manner in ivhich such acts, 
records, and proceedings shall be proved, and the effect 
thereof 

§ 397. The laws and acts of foreign nations are not 
judicially taken notice of by other nations, but must be 
proved, like other facts, when they come under exami¬ 
nation. The mode of proof varies in different countries. 
As to the effect to be given ^0Ye\gn judgments, all civil¬ 
ized nations are agreed they shall have some effect, but 
what, they are not agreed upon. In England and the 
United States, foreign judgments are what is called 
prima facie evidence of what they decide. This means 
that they shall be taken as true till the contrary is 
proved. A domestic judgment, however, is true conclu¬ 
sively, and cannot be contradicted. 

* Story’s Comm. 171. 


* Idem. 173. 


THE UNITED STATES. 


149 


§ 398. The full faith and credit mentioned in the 
Constitution, was inserted to place the judgments of the 
different states upon a different footing from those of 
foreign nations. The latter were already prima facie 
evidence; the former then must be conclusive. They 
have absolute verity, so that they cannot be denied any 
more than in the state where they originated.‘ If a 
judgment is conclusive in the state where it is pro¬ 
nounced, it is conclusive everywhere; if re-examinable, 
there, it is so elsewhere. It is placed upon the same 
ground as a domestic judgment. 

§ 399. Section 2d. 1st clause. The citizens of each 
state shall he entitled to all privileges and immunities of 
citizens in the states. 

2d clause. A person charged in any state with trea¬ 
son, felony, or other crime, who shall fee from justice, 
and he found in another state, shall, on demand of the 
executive authority of the state from which he fed, he 
delivered up to he removed to the state having jurisdic¬ 
tion of the crime. 

3d clause. No person held to service or labor in one 
state, under the laws thereof, escaping into another^^ shall, 
in consequence of any law or regulation therein, he dis¬ 
charged from such service or labor, hut shall he de¬ 
livered on claim of the party to whom such service or 
labor may he due. 

§ 400. The object of the first part of the clause is 
plain enough. If each citizen was not a citizen of the 
United States in other states, then the states would be 
Qovn^\etc\y foreign to each other, and their citizens aliens 
in each other. This clause makes each citizen of a state 
vl citizen of the United States, and as such confers on him 
rights and privileges throughout the whole Union. 

§ 401. The subject of delivering up fugitives from 
justice is one which among different nations has in¬ 
volved some doubts. In the United States, however, it 


1 3 Story’s Comm. 180; 

13 


1 

■H- 


Peters’ C. R. 74, 80. 


150 


CONSTITUTION OP 


is firmly fixed by the above provision, which requires 
them always to be given up to those who have a right 
to require it. 

§ 402. The next clause, relative to persons held to 
service or labor, plainly refers to the slaves of the 
southern states who may take refuge in the non-slave¬ 
holding states. The delivery^ in the case of fugitives 
and slaves is to be made, not after a full trial, which 
would manifestly defeat the end in view; but after a 
summary investigation before a magistrate, in which it 
shall appear probable that the circumstances charged 
are true. By an act of Congress, 1793, it is provided 
that such proof may be made before any magistrate, by 
the principal or his attorney, and may be either by affi¬ 
davit or oral testimony to his satisfaction. The magis¬ 
trate IS then authorized to give a certificate of the facts 
to the party or his agent, which certificate is sufficient 
warrant of removal. Heavy penalties are laid on those 
who hinder or resist such proceedings, or harbor any 
of the fugitives or slaves. 

§ 403. Section 3d. 1st clause. New states may be 
admitted by the Congress into this Union; but no new 
state shall be formed or erected icithin the jurisdiction of 
any other state; nor any state be formed by the junction 
of two or more states, or parts of states, without the con-^ 
sent of the legislatures of the states concerned, as well 
as of the Congress. 

2nd clause. The Congress shall have power to dis¬ 
pose of and make all needf ul rules and regulations re¬ 
specting the territory, and other property belonging to the 
United States; and nothing in this Constitution shall be 
so construed as to prejudice any claims of the United 
States, or of any particular state. 

§ 404. These two clauses are the foundations upon 
which Congress erect and administer the territorial 
governments, and subsequently admit them into the 
* 3 Story’s Comm, 677. 


THE UNITED STATES. 


151 


Union. Under the old confederation, no such provision 
existed; and so little anticipation was had of the-growth 
and prosperity of those wild regions whose population 
and territory have since nearly doubled the states, and 
more than quadrupled their strength, that no provision 
existed on the subject of forming or admitting new states. 
Since the adoption of the Constitution, however, eleven 
new states have been added to the Union, and three 
territories will soon still farther increase that number. 
The power given by the Constitution to do this is one 
of the new principles introduced into our system, and is 
perhaps the most anomalous and most influential upon 
its future destiny of any.^ The principle is simply this, 
that a colony settled upon an adjacent territory, and 
within the jurisdiction of the United States, whether it 
be composed of citizens of the Union or emigrants from 
foreign nations, Europeans, or Asiatics, shall, on enu¬ 
merating a specific population, be admitted to equal 
rights, privileges, and powers with the original states. 
This principle is likewise unlimited in respect to the 
number, distance, or settlement of the colonies. The 
consequence is, that the original states may ultimately, 
as they soon must, be left in a minority as to power in 
that government which they formed, and of which they 
were the sole possessors. They make the whole world 
partners with themselves, in an inheritance of liberty 
and power and wealth. The grant thus made to the 
world of an asylum for all mankind, is noble and benevo¬ 
lent, and the more so, as it seems to have had no former 
example among nations. It may be said, that the states 
thus added are not foreign: it is true they were not 
conquered, but they are just as subversive of the powers 

1 Note. —All the nations of antiquity held immense which 

constituted a part of the state, for purposes of revenue and armies,—but 
were never adtnitted upon terms of equality^ and whose inhabitants 
were never citizens. 'I'he idea of constituting a govern,ment, to be 
increased as to the source of law —by its own colonization, or by 
recruits from abroad, is vvbolly new. 


152 


CJONSTITUTION OF 


of the old states as if they had been taken from foreign 
countries. In the case of Louisiana, which was pur¬ 
chased, it was the accession of foreign territory; and at 
the time the territory of Orleans was erected into a 
state, its inhabitants were almost wholly Spanish and 
French. In the same manner the territory of Florida 
is an accession from a foreign country; and so also, 
should the government hereafter acquire any district or 
territory whatever, according to the existing laws, it 
would first become an organized territory of the United 
States, and then a state. No such policy as this was 
ever adopted by any other country, and it succeeds and 
could succeed only by that nice system of balances and 
toleration, by which one sect, or party, or state, is 
constantly checked by others, and the elements of 
discord and opposition kept from any general union 
against the laws and the government. It must be 
observed, however, as what may hereafter be of im¬ 
portance, that the term used in the Constitution, as 
to the admission of states, is 7]iay, and not shall. 
Hence, it is not imperative in the government of the 
United States to admit neiv states whenever they may 
demand it. The Constitution has, in the next clause, 
provided for the government of Territories, and the 
Congress may undoubtedly keep all, not provided for 
by the ordinance of 1787, as territories forever. 

§ 405. In respect to the formation of states and the 
territorial governments, the power was exercised by 
Congress before the Constitution was formed, and with¬ 
out any article in the confederation to authorize it. The 
whole of what was called the North-western Territory, 
ceded by Virginia to the United States, and out of 
which has been carved the states of Ohio, Indiana, 
Illinois, and the territory of Michigan,—was placed 
under a territorial government, and governed by the 
ordinance of 1787d That ordinance was, in many re- 
i Act of Congress, 1787. 


• THE UNITED STATES. 


153 


spects, wisely drawn, and has had great, and not less 
certain, because unseen, influence, upon the prosperity 
and happiness of that immense and now populous dis¬ 
trict.* 

§ 406. The articles of compact solemnly tendered to 
the people of the states about to be formed, and thus far 
accepted by them,—contained some remarkable pro¬ 
visions. Among these articles are, 

1st, An agreement that said territory, and the states 
which may be formed therein, shall forever remain a 
part of this confederacy, subject to the articles of con¬ 
federation, and to such alterations as may he made therein. 
This part of the compact, as will be seen hereafter, has 
an important bearing upon the recently agitated ques¬ 
tion of secession. 

2d, And it is further provided, that there shall be nei¬ 
ther slavery nor involuntary servitude in the said territory. 

Sd, And farther, that whenever any of the said ter¬ 
ritories shall contain sixty thousand freejnhabitants, it 
shall be admitted into the Union upon an equal footing 
with the original states.^ - 

§ 407. The power of Congress over the public terri¬ 
tory is exclusive and universal, except so far as they are 
restrained by stipulations in the cessions, or by the ordi¬ 
nance of 1787.^ This is not the case, however, with 
merely national properly, such as forts and arsenals, 
where the states have not ceded the jurisdiction: in 
such cases, the jurisdiction of the state continues; sub¬ 
ject, however, to the just exercise of the proper powers 
of the national government. 

iNote.—T he North-west Territory, ceded by Virginia to the United 
States, and included within the ordinances of 1787, contained the states 
of Ohio, Indiana, Illinois, and the Territory of Michigan. They now 
contain more than 1,500,000 inhabitants, and have derived the whole 
vigor and spirit of their institutions, and the direction of their policy 
and views, from the ordinance above cited. How important and lasting 
are the acts of early legislators! 

2 The entire ordinance will be found, page 188, following Washing¬ 
ton’s Address. 3 3 Story’s Comm. 198. 


IM 


COiVSTITUTION OF 


§ 408. In the year 1820, upon the admission of the 
state of Missouri into the Union, a question was raised, 
whether a clause restricting the admission of slaves into 
the state was constitutional. That question was not 
directly decided, but it was indirectly by the act passed,* 
which declared that, in all the territory north of lat. 36 
deg. 30 min., not included within the limits of Missouri, 
slavery and involuntary servitude should for ever be 
prohibited. 

§ 409. The question may, however, be considered as 
settled long before by the enactment of the ordinance 
of 1787, under the confederation, and the subsequent 
adoption and continuance of its provisions under the 
Constitution. 

§ 410. An objection involving the same principle 
was made to the compact between Virginia and Ken¬ 
tucky, but at once overruled by the Supreme Court.^ 

, Section 4th. The United States shall guaranty to 
every state in this Union a Republican form of govern¬ 
ment, and shall protect each of them against invasion, 
and, on the application of the Legislature, or of the Exe¬ 
cutive (ivhen the Legislature cannot he convened), against 
domestic violence. 

This clause was unanimously adopted by the con¬ 
vention, and seems essential to the well-being of the 
republic, because the whole republic could not exist, if 
a different form of government was allowed to exist in 
either one of the states. This clause is intended to 
prevent such a change either by a powerful faction, a 
rebellion, or any other cause. 

The phrase “ guaranty a Republican form of govern¬ 
ment”—“protect”—against “invasion”—or “domestic 
violence;”— covers, and was manifestly meant to cover 
every condition of Treason, — Rebellion, — Insurrection, 
—Servile Wars, —or Tumult, which could possibly be 

1 Act of Congress, March G, 1820. 

2 Green vs. Biddle, 8 Wheaton, I, 87, 88. 


THE UNITED STATES. 


155 


imagined against the peace or government of a State. 
It covered every thing not covered by municipal legisla¬ 
tion. The Constitution has already taken from the states 
the power to keep troops, and ships of war, and conse¬ 
quently, efficiently to suppress insurrections. Hence, it 
was necessary for the United States to assume their 
defence. 


ARTICLE V. 

§ 411. The Congress, whenever two-thirds of hoik 
Houses shall deem it necessary, shall propose amend¬ 
ments to this Constitution, or, on the application of the 
legislatures of two-thirds of the several states, shall call 
a convention for proposing amendments, which, in either 
case, shall be valid to all intents and purposes, as part 
of this Constitution, u'kcn ratified hy the legislatures of 
three-fourths of the several states, or by conventions in 
three-fourths thereof, as the one or the other mode of rati¬ 
fication may be proposed hy the Congress; provided that 
no amendment, which may be made prior to the year one 
thousand eight hundred and eight, shall in any manner 
afi'ect the first and fourth clauses in the ninth section of 
the first article; and that no state, without its consent, 
shall be deprived of its equal suffrage in the Senate. 

§ 412. This article provides that amendments may 
be made to the Constitution, and also points out the 
manner of making them. From this two things follow: 

1st. That amendments made in accordance with the 
provisions of this article, become of the same binding 
authority as if they had formed a part of the original 
instrument. 

2d. That no amendment can be made except in the 
way here pointed out. 

The amendments do not require the assent of the Presi- 



156 


CONSTITUTION OF 


dent;—for, when proposed by two-thirds of Congress^OiWdL 
ratified by three-fourths oC the States, —they are valid 

§ 413. There are three limitations to the power of 
making amendments: 

1st. That the prohibition of Congress to pass any law 
prior to the year eighteen hundred and eight, forbidding 
the introduction of slaves, should not be removed. 

2d. That the mode of levying a capitation or direct 
tax should not be changed so long as slave property 
could be increased by importation. 

3d. That no state should be deprived, without its 
consent, of its equal representation in the Senate. 

The first restriction was adopted as a matter of com¬ 
promise, and to ensure, for a limited time, the continu¬ 
ance of a profitable traffic. The second necessarily 
grew out of the first; for it would obviously have been 
unjust to change the mode of laying taxes while the 
property exempted from taxation could have been in¬ 
creased at pleasure, by importation. The third restric¬ 
tion was intended to ensure to the lesser states an ef¬ 
fective safeguard against encroachments from the larger; 
and being placed in the Constitution itself, it cannot be 
broken down. 


ARTICLE YL 

§ 414. 1st clause. All debts contracted, and engage- 
ments entered into, before the adoption of this Constitu¬ 
tion, shall be as valid against the United States, under 
this Constitution, as under the Confederation. 

The obligations between a nation and private indi¬ 
viduals remain the same, whatever changes the form of 
government may undergo.^ 

. § 415. 2d clause. This Constitution, and the laws of 
' ’ > 3 Dallas, 378. 2 Federalist, 43. 



THE UNITED STATES. 


157 


the United States, which shall be made in pursuance 
thereof, and all treaties, made, or which shall be made 
under the authority of the United States, shall be the su¬ 
preme law of the land; and the judges in every state 
shall be bound thereby; any thing in the Constitution, or 
laws of any state to the contrary notwithstanding. 

§ 416. The necessity of this provision is obvious 
enough. If the Constitution were not the supreme law 
of the land it would not be a Constitution; it would be 
a nullity: its supremacy makes a part of the instrument 
itself; yet it was necessary to declare it, in order that 
all might understand it, and no room be left for contro¬ 
versy. Treaties are supreme laws till repealed by the 
legislature of the nation: the legislature has such 
power, though war may be the consequence of its exer¬ 
cise.^ Treaties are compacts with foreign nations, and 
must be observed, or the national faith is violated. 

§ 417. The laws of the United States, if made in 
pursuance of the Constitution, are as valid as the Con¬ 
stitution, and of course also the supreme law. To 
these provisions it Is added, ^Uiny thing in the Constitu¬ 
tion, or laivs of any state to the contrary notwithstand- 
ins’.” This clause gave no additional force to the fore- 
going provisions, but made them clearer to those who 
administer the laws. Another thing clearly appears 
from the whole clause, that the Constitution makes the 
national government supreme over the state constitution 
and laws in all cases in which they may come in con¬ 
flict. As the Constitution is thus supreme, every court 
has the power to declare unconstitutional laws void, 
when properly before them.^ 

§ 418. 3d clause. The senators and representatives 
before mentioned, and the members of the several state 
legislatures, and all executive and judicial ofeers, both 
of the United States and of the several states, shall be 
bound by an oath, or af rmation, to support this Consti- 
* 2 Cranch, 1; 3 Story’s Coram. 695. ^ l Kent’s Comm. 420. 

14 


158 


CONSTITUTION OF 


tution; hut no religious test shall ever he required as a 
qualification to any office or public trust under the United 
States. 

§ 419. This oath is required in all civilized nations 
from the officers of government; it is the most solemn 
obligation men can be placed under, and it is right to 
require it of them in a class of duties as important as 
any that can be performed in a social state. It is to be 
remarked, that this oath is required of all state, as well 
as national officers; for the agency of state officers is re¬ 
quired to carry on the national government, and they 
are accordingly required to give their obligations to 
perform it. 

§ 420. In June, 1789, Congress passed an act* pre¬ 
scribing the time and manner of taking the oath or af¬ 
firmation, as well by the officers of the several states 
as of the United States. Some doubts were entertain¬ 
ed of its constitutionality, but it was approved, and no 
doubt is now had upon it.^ 

§ 421. The clause which enacts that no religious 
test shall ever be required for any office of trust or 
profit, is one of the most peculiar, as well as valuable 
parts of the Constitution. This is believed to be the 
only government in the world which permitted perfect 
toleration, and the experience of half a century has 
proved that it offers no hindrance to any, while it af¬ 
fords protection to all religious sects. While this exists, 
there can be no union of Church and State, —a union 
fatal to both, and dasastrous to the welfare of the peo¬ 
ple. Yet Christianity flourishes and extends in the 
United States with the growth of the people, and tho 
very emulation of the different sects contributes to the 
prosperity of the whole. 

1 Act 1st June, 1789. 

* 4 Elliott’s Debates, 139; 4 Wheaton’s Rep. 4l5. 


THE UNITED STATES. 


169 


ARTICLE VIL 

§ 422. ratification of the conrentions of nine 
states shall be suficient for the establishment of this 
Constitution between the states so ratifying the same. 

At the formation of the Constitution, there were thir¬ 
teen states; nine of these ratified it immediately, three 
after the lapse of a few months, and the state of Rhode 
Island not till more than a year afterward. The instru¬ 
ment was, however, perfect by the ratification of nine, and 
if the others had not acceded, they would have stood in 
the relation to them of foreign nations. Since that period, 
eleven others have joined the union, and the whole form 
one great nation under a common government. 


AMENDMENTS. 

§ 423. Upon the adoption of the Constitution, strong 
objections were made to it on account of some supposed 
deficiencies. Among others, the want of a Bill of 
Rights was strongly urged, to which it was justly re¬ 
plied, that the Constitution itself was a bill of rights. 
The people, in their conventions, however, finally 
thought best to accede to the Constitution, and urge 
upon Congress the proposal of several amendments. 
Accordingly, the amendments we have already mention¬ 
ed, those following, and some that were not adopted, 
were recommended by many of the states to Congress, 
and by Congress to the people. 

AMENDMENT I. 

§ 424. Congress shall make no law respecting an estab¬ 
lishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the 
press; or of the right of the people peaceably to assemble^ 
and to petition the government for a redress of grievances. 



160 . CONSTITUTION OF 

The first clause was undoubtedly meant to prohibit 
Congress from interfering in any manner between dif¬ 
ferent sects of Christianity, and not to encourage any 
other religion. For nearly all the old states had laws 
for the encouragement of religion; at the same time, 
Congress has no power to do the slightest positive act 
to sustain or prohibit any religion whatever. It is a 
subject upon which they are forbidden to legislate. In 
this respect the United States Constitution is wholly un¬ 
like any other ever formed. It derives no aid from its 
connexion with religion, but leaves that to be settled by 
conscience and its God. 

' § 425. The next clause is, that Congress shall make 
no law abridging the freedom of speech or of the press. 
What is the freedom of speech and of the press? It 
is the right to speak and publish every thing in relation 
to every subject, which is not in derogation of private 
rights. No one has a right to injure his neighbor: this 
is the first law of society, and everywhere preserved in 
tlic civil state; of consequence, no one has a right to speak 
or publish what will injure another; hence the law of 
slander and of libel. ^ Within these limits it is not per¬ 
ceived that there is any restraint upon the liberty either 
of speech or of the press. 

§ 426. The next clause is, the people shall have the 
right peaceably to assemble and petition for a redress 
of grievances. This seems to have been altogether a 
work of supererogation; for the right of the people to 
assemble, either to petition, or for any other purpose, 
arises necessarily from the form of government. 

AMENDMENT II. 

§ 427. -A. well regulated militia being necessary to 
the security of a free state, the Q'ight of the people to 
keep and bear arms shall not be infringed. 

The term militia is a Latin word, and signifies the 
being a soldier. In our country it is applied only to that 


THE UNITED STATES. 


161 


species of soldiery which is composed wholly of en¬ 
rolled citizens, held ready for service, but not actually 
under arms. It is scarcely necessary to say, that the right 
of the people thus to bear arms is the foundation of their 
liberties; for, without it, they would be without any 
power of resistance against the existing government. 

AMEND3IENT III. 

§ 428. No soldier shall, in time of peace, he quar¬ 
tered in any house without the consent of the owner, nor 
in time of war, but in a manner to he prescribed by law. 

It was an easy mode of oppression, with arbitrary 
princes, to quarter soldiers upon the people, so that they 
ate out their substance and ill treated their families. It 
was to prevent the possibility of such scenes in this coun¬ 
try that this provision was inserted in the Constitution, 

AMENDMENT IV. 

§ 429. The right of the peoqde to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not he violated; and no war¬ 
rant shall issue but upon probable cause, supported by 
oath, or affirmation, and particularly describing the place 
to he searched, and the persons or things to he seized. 

Special warrants, such as here described, are the only 
warrants upon which an arrest can be made according 
to the law of England.' This provision, therefore, was 
in affirmance of the Common Law, and introduced into 
the Constitution for more abundant caution. 

§ 430. Amendments 5th, 6th, and 7th, in relation to 
the trial by jury, and the mode of indictment, we have 
already considered in connexioii with another part of 
the Constitution. 

AMENDMENT VIII, 

§ 431. Excessive bail shall not he required,nor excessive 
fnes imposed, nor ci'uel and unusual punishments inflicted^ 
> 3 Burrow’s Rep. 1743; 4 Blackstone’s Comiri. 291, 292. 

14 


162 


CONSTITUTION OP 


Excessive bail, and cruel punishments, were another 
class of means used by arbitrary governments to op¬ 
press the people; hence the insertion of this amend¬ 
ment. 

It has been held that this clause applies only to pun¬ 
ishments inflicted by the national government, and not 
to those inflicted by the states.^ 

AMENDMENT IX. 

§ 432. The enumeration in the Constitution of certain 
rights, shall not be construed to deny or disparage others 
retained by the people. 

This was merely meant to prevent the application to 
the Constitution of a maxim, that the affirmation of cer¬ 
tain things, in soirie cases, implies a denial of others. 

AMENDMENT X. 

§ 433. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the states, 
are reserved to the states respectively, or to the j^cople. 

This • provision follows of course, without express 
insertion, from the fact that the Constitution is an in¬ 
strument of enumerated powers, anu those not expressly 
given in it, or necessarily flowing from them, are re¬ 
tained by the original source of power, or invested in 
collateral and inferior governments. Now, what is this 
source of power? The people. It must be recollected, 
that both national and state governments are formed 
by, and derive their authority from, the people; hence, 
whatever powers they have not invested in the national 
government, must either be granted to the state govern¬ 
ments, or retained by themselves; therefore, the words 
of the provision, ^^reserved to the states respectively, or 
to the people.'^’' 

§ 434. Amendment Hth, in relation to the judicial 
power, and 12th, in relation to the Presidential election, 
have been already considered. 

1 3 Cowen’s New-York Rep. 686; 3 Story’s Comm. 751., 


THE UNITED STATES. 


163 


CONSTITUTION OF THE UNITED STATES. 


Preamble. 

We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the com¬ 
mon defence, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this Con¬ 
stitution for the United States of America. 

ARTICLE I. 

Of the Legislature. 

SECTIOxN 1. 

1. All legislative powers herein granted shall be vested in a Congress 
of the United States, which shall consist of a Senate and House of Re¬ 
presentatives. 

SECTION ir. 

1. The, House of Representatives shall be composed of members 
chosen every second year by the people of the several states; and the 
electors in each state shall have the qualifications requisite for electors 
of the most numerous branch of the state legislature, 

2. No person shall be a representative who shall not have attained 
to the age of twenty-five years, and been seven years a citizen of the 
United States, and who sliall not, when elected, be an inhabitant of 
that state in which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned among the 
several states which may be included within this union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three-fifths of all other 
persons. The actual enumeration shall be made within three , years 
after the first meeting of the Congress of the United States, and within 
every subsequent term of ten years, in such manner as they shall by 
law direct. The number of representatives shall not exceed one for 
every thirty thousand, but each state shall have at least one representa¬ 
tive; and until such enumeration shall be made, the state of New- 
Hampshire shall be entitled to choose three; Massachusetts, eight; 
Rhode Island and Providence Plantations, one; Connecticut, five; 



164 


CONSTITUTION OP 


New York, six; New Jersey, four; Pennsylvania, eight; Delaware, 
one; Maryland, six; Virginia, ten; North Carolina, five; South Caro¬ 
lina, five; and Georgia, three. 

4. When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

5. The House of Representatives shall choose their speaker and 
other officers; and shall have the sole power of impeachment. 

SECTION III. 

1. The Senate of the United States shall be composed of two sena¬ 
tors from each state, chosen by the legislature thereof, for six years; 
and each senator shall have one vote. 

2. Immediately after they shall be assembled, in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated at 
the expiration of the second year, of the second class at the expiration 
of the fourth year, and of the third class at the expiration of the sixth 
year, so that one-third may be chosen every second year; and if 
vacancies happen by resignation or otherwise, during the recess of 
the legislature of any state, the executive thereof may make tempo¬ 
rary appointments until the next meeting of the legislature, which shall 
then fill such vacancies. 

3. No person shall be a senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of the United States, 
and who shall not, when elected, be an inhabitant of the state for 
which he shall be chbsen. 

4. The Vice-President of the United States shall be President of the 
Senate, but shall have no vote, unless they be equally divided. 

5. The Senate shall choose their other officers, and also a president 
pro tempore, in the absence of the Vice-President, or when he shall 
exercise the office of President of the United States. 

6. The Senate shall have the sole power to try all impeachments: 
when sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the Chief-Justice 
shall preside; and no person shall be convicted without the concurrence 
of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy any office 
of honor, trust, or profit under the United States; but the party convict¬ 
ed shall nevertheless be liable and subject to indictment, trial, judgment, 
and punishment, according to law. 

SECTION IV. 

1. The times, places, and manner of holding elections for senators 
and representatives, shall be prescribed in each state by the legislature 
thereof; but the Congress may at any time, by law, make or alter such 
regulations, except as to the places of choosing senators. 


THE UNITED STATES. 


165 

2. The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

SECTION V. 

1. Each House shall be the judge of the elections, returns, and quali¬ 
fications of its own members, and a majority of each shall constitute a 
quorum to do business; but a smaller number may adjourn from day to 
day, and may be authorized to compel the attendance of absent mem¬ 
bers, in such manner and under such penalties as each House may 
provide. 

2. Each House may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two- 
thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may, in their judgment, 
require secrecy; and the yeas and nays of the members of either House, 
on any question, shall, at the desire of one-fifth of those present, be en¬ 
tered on the journal. 

4. Neither House, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any other 
place than that in which the two Houses shall be sitting. 

SECTION VI. 

]. The senators and representatives shall receive a compensation for 
their services, to be ascertained by law, and paid out of the treasury of 
the United States. They shall, in all cases, except treason, felony, and 
breach of the peace, be privileged from ariest during their attendance at 
the session of their respective Houses, and in going to and returning 
from the same; and for any speech or debate in either House, they shall 
not be questioned in any other place. 

2. No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of the 
United States, which shall have been created, or the emoluments where¬ 
of shall have been increased during such time; and no person holding 
any office under the United States, shall be a member of either House 
during his continuance in office. 

SECTION VII. 

1. All bills for raising revenue shall originate in the House of Repre¬ 
sentatives; but the Senate may propose or concur with amendments as 
on other bills. 

2. Every bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a law, be presented to the President of 
the United States; if he approve, he shall sign it; but if not, he shall re¬ 
turn it, with his objections, to that House in which it shall have originated, 
who shall enter the objections at large on their journal, and proceed to 
reconsider it. If, after such reconsideration, two-thirds of that House 


166 


CONSTITUTION OF 


shall agree to pass the bill, it shall be sent, together with the objections, 
to the other House, by which it shall likewise be reconsidered, and if 
approved by two-thirds of that House, it shall become a law. But in 
all such cases the votes of both Houses shall be determined by yeas and 
nays; and the names of the persons voting for and against the bill shall 
be entered on the journal of each House respectively. If any bill shall 
not be returned by the President within ten days (Sundays excepted) 
after it shall have been presented to him, the same shall be a law, in 
like manner as if he had signed it, unless the Congress by their adjourn¬ 
ment prevent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote, to which the concurrence of the 
Senate and House of Representatives may be necessary (except on a 
question of adjournment), shall be presented to the President of the 
United States; and before the same shall take effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two-thirds of 
the Senate and House of Representatives, according to the rules and 
-limitations prescribed in the case of a bill. 

SECTION VIII. 

The Congress shall have power— 

1. To lay and collect taxes, duties, imposts, and excises, to pay the 
debts and provide for the common defence and general welfare of the 
United States; but all duties, imposts, and excises shall be uniform 
throughout the United States: 

2. To borrow money on the credit of the United States: 

3. To regulate commerce with foreign nations, and among the seve¬ 
ral states, and with the Indian tribes: 

4. To establish an uniform mode of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States: 

5. To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures: 

6. I'o provide for the punishment of counterfeiting the securities and 
current coin of the United States: 

7. To establish post-offices and post-roads : 

8. To promote the progress of science and useful arts, by securing, for 
limited times, to authors and inventors, the exclusive right to their re¬ 
spective writings and discoveries: 

9. To constitute tribunals inferior to the supreme court: 

10. To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations: 

11. To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water: 

12. To raise and support armies; but no appropriation of money for 
that use shall be for a longer term than two years; 

13. To provide and maintain a navy: 

14. To make rules for the government and regulation of the land and 
naval forces: 

15. 'I'o provide for calling forth the militia to execute the laws of the 
- Union, suppress insurrections, and repel invasions: 


THE UNITED STATES. 


167 


16. To provide for organizing, arming, and disciplining the militia, 
and for governing such part of them as may be employed in the service 
of the United States, reserving to the states respectively the appoint¬ 
ment of the officers, and the authority of training the militia according 
to the discipline prescribed by Congress : 

17. To exercise exclusive legislation in all cases whatsoever, over 
such district (not exceeding ten miles square), as may, by cession of 
particular states, and the acceptance of Congress, become the seat of 
the government of the United States; and to exercise like authority over 
all places purchased by the consent of the legislature of the state in which 
the same shall be, for the erection of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings:—And, 

18. To make all laws which shall be necessary and proper for carry¬ 
ing into execution the foregoing powers, and all other powers vested by 
this Constitution in the government of the United States, or in any de 
partment or officer thereof. 

SECTION IX. 

1. The migration or importation of such persons as any of the states 
now existing shall think proper to admit, shall not be prohibited by the 
Congress prior to the year one thousand eight hundred and eight; but a, 
tax or duty may be imposed on such importation, not exceeding ten dol¬ 
lars for each person. 

2. The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may re¬ 
quire it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation or other direct tax shall be laid, unless in proportion 
to the census or enumeration herein before directed to be taken. 

5. No tax or duty shall be laid on articles exported from any state. 

6. No preference shall be given by any regulation of commerce or 
revenue to the ports of one state over those of another: nor shall ves¬ 
sels bound to, or from one state, be obliged to enter, clear, or pay duties 
in another. 

7. No money shall be drawn from the treasury but in consequence of 
appropriations made by law; and a regular statement and account of 
the receipts and expenditures of all public money shall be published 
from time to time. 

8. No title of nobility shall be granted by the United States: and 
no person holding any office of profit or trust under them, shall, without 
the consent of the Congress, accept of any present, emolument, office, 
or title of any kind whatever, from any king, prince, or foreign state. 

SECTION X. 

1. No state shall enter into any treaty, alliance, or confederation; 
grant letters of marque and reprisal; coin money; emit bills of credit; 
make any thing but gold and silver coin a tender in payment of debts; 
pass any bill of attainder, ex post facto law, or law impairing the obli¬ 
gation of contracts; or grant any title of nobility. 


168 


CONSTITUTION OF 


” 2. No state shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports, except what may be absolutely neces¬ 
sary for executing its inspection laws; and the net produce of all duties 
and imposts, laid by any state on imports or exports, shall be for the 
use of the treasury of the United States; and all such laws shall be 
subject to the revision and control of the Congress. 

3. No state shall, without the consent of the Congress, lay any duty 
of tonnage, keep troops or ships of war in time of peace, enter into any 
agreement or compact with another state, or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent danger as 
will not admit of delay. 

ARTICLE II. 

Of the Executive. 

SECTION I. 

1. The executive power shall be vested in a President of the United 
States of America. He shall hold his office during the term of four 
years, and, together with the Vice-President, chosen for the same 
term, be elected as follows: 

2- Each state shall appoint, in such manner.as the legislature thereof 
may direct, a number of electors, equal to the whole number of sena¬ 
tors and representatives to which the state may be entitled in the Con¬ 
gress: but no senator or representative, or person holding an office 
of trust or profit under the United Stales, shall be appointed an elector. 

[3. The electors shall meet in their respective states, and vote by ballot for 
two persons, of whom one at least shall not be an inhabitant of the same 
state with themselves. And they shall make a list of all li»e persons voted 
for, and of the number of votes for each ; vvliich list they shall sign and cer 
tify, and transmit sealed to the seat of government of tlio United States, 
directed to the President of the Senate. 'I’he President of the Senate shall, 
in the presence of the Senate nu<\ House of Representatives, open all the cer¬ 
tificates, and the votes shall tlien he counted. 'J'l.e person having the greatest 
mimher of votes shall he the President, if such nuuP er be a majority of the 
whole nvunber of electors appointed; and if there he more than one who 
have such majority, and have an equal number of votes, then tlie House of 
Representatives shall immediately choose by 1 allot one of tlicm for Presi¬ 
dent; and if no person have a majority, then from the five highest on tlie 
list, the said House shall in like maimer choose the President. But in choos¬ 
ing tlie President, tiie votes sliall be taken by states, the representation from 
each state having one vote: A quorum for this purpose shall consist of a 
mcmb(T or meinhers from two-thirds of tl e states, and a majority of all the 
states shall he necessary to a cl oice. In every case, after tlie choice of the 
President, the person having the greatest number of votes of the electors 
shall he ti e Vice-President. But if there should remain two or more who 
have equal votes, the Senate shall choose from them by ballot the Vice- 
President.]’*^ 

3. The Congress may determine the time of choosing the electors, 
and the on which they shall give their votes; which day shall be 
the same throughout the United States. 

4. No person, except a natural born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, shall be 

* This clause is annulled. See Amendments, Art. 12. 


THE UNITED STATES. 


169 


eligible to the office of President; neither shall any person be eligible to 
that office who shall not have attained to the age of thirty-five years, 
and been fourteen years a resident within the United States. 

5. In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties of 
the said office, the same shall devolve on die Vice-President; and the 
Congress may by law provide for the case of removal, death, resigna¬ 
tion, or inability, both of the President and Vice-President, declaring 
what officer shall then act as President, and such officer shall act 
accordingly, until the disability be removed, or a President shall be 
elected. 

6. The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished during 
the period for which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, or any 
of them. 

7. Before he enter on the execution of his office, he shall take the 
following oath or affirmation :— 

“I do solemnly swear (or affirm), that 1 will faithfully execute the office 
of President of the United States, and will, to the best of my ability, 
preserve, protect, and defend the Constitution of the United States.” 

SECTION II. 

1. The President shall be commander-in-chief of the army and navy 
of the United States, and of the militia of the several states when called 
into the actual service of the United States; he may require the 
opinion, in writing, of the principal officer in each of the executive de¬ 
partments, upon any subject relating to the duties of their respective 
offices, and he shall have power to grant reprieves and pardons for 
offences against the United States, except in cases of impeachment. 

2. He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the senators present 
concur; and he shall nominate, and by and with the advice and con¬ 
sent of the Senate, shall appoint ambassadors, other public ministers 
and consuls, judges of the supreme court, and all other officers of the 
United States whose appointments are not herein otherwise provided 
for, and which shall be established by law: but the Congress may by 
law vest the appointment of such inferior officers as they think proper 
in the Preside!)t alone, and in the courts of law, or in the heads of de¬ 
partments. 

3. The President shall have power to fill up all vacancies that may 
happen durijig the recess of the Senate, by granting commissions which 
shall expire at the end of their next session. 

SECTION III. 

1. He shall, from time to time, give to the Congress information 
of the state of the Union, and recommend to their consideration 
such measures as he shall wd^ge necessary and expedient; he may, 
on extraordinary occasions, convene both Houses, or either of them, 

15 


170 


CONSTITUTION OF 


and ir case of disagreement between them, with respect to the 
time of adjournment, he may adjourn them to such time as he shall 
think proper; he shall receive ambassadors and other public ministers; 
he shall take care that the laws be faithfully executed, and shall com¬ 
mission all the officers of the United States. 

SECTION IV. 

1. The President, Vice-President, and all civil officers of the United 
States, shall be removed from office on impeachment for, and conviction 
of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III. 

Of the Judiciary. 

. SECTION I. 

1. The judicial power of the United States shall be vested in one 
supreme court, and in such inferior courts as the Congress may, from 
time to time, ordain and establish. The judges, both of the supreme 
and inferior courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services a compensation, which 
shall not be diminished during their continuance in office. 

SECTION II. 

1. The judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority;—to all 
cases affecting ambassadors, other public ministers, and consuls;—to 
all cases of admiralty and maritime jurisdiction;—to controversies to 
which the United States shall be a party;—to controversies between 
two or more states;—between a state and citizens of another state;—• 
between citizens of different states;—between citizens of the same 
state claiming lands under grants of different states, and between a 
state, or the citizens thereof, apd foreign states, citizens, or subjects. 

2. In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a state shall be party, the supreme 
court shall have original jurisdiction. In all the other cases before 
mentioned, the supreme court shall have appellate jurisdiction, both as 
to law and fact, with such exceptions, and under such regulations as 
the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall be by 
jury; and such trial shall be held in the state where the said crimes 
shall have been committed; but when not committed within any state-, 
the trial shall be at such place or places as the Congress may by law 
have directed. 

SECTION m. 

1. Treason against the United States shall consist only in levying 
war against them, or in adhering to their enemies, giving them aid 
and comfort. 


THE UNITED STATES. 


171 


2. No person shall be convicted of treason unless on the testimony 
of two witnesses to the same overt act, or on confession in open court. 

3. The Congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of blood, or 
forfeiture, except during the life of the person attainted. 

ARTICLE IV. 

Miscellaneous. 

SECTION I. 

1. Full faith and credit shall be given in each state to the public 
acts, records, and judicial proceedings of every other state. And the 
Congress may, by general laws, prescribe the manner in which such 
acts, records, and proceedings shall be proved, and the effect thereof. 

SECTION II. 

1. The citizens of each state shall be entitled to all privileges and 
immunities of citizens in the several states. 

2. A person charged in any state with treason, felony, or other crime, 
who shall flee from justice, and be found in another state, shall, on de¬ 
mand of the executive authority of the state from which he fled, be deliv¬ 
ered up, to be removed to the state having jurisdiction of the crime. 

3. No person held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu¬ 
lation therein, be discharged from such service or labor, but shall be de¬ 
livered up on claim of the party to whom such service or labor may be 
due. 

SECTION III. 

1. New states may be admitted by the Congress into this Union: 
but no new state shall be formed or erected within the jurisdiction 
of any other state, nor any state be formed by the junction of two or 
more states, or parts of states, without the consent of the legislatures of 
the states concerned, as well as of the Congress. 

2. The Congress shall have power to dispose of and make needful 
rules and regulations respecting the territory or other property belonging 
to the United States; and nothing in this Constitution shall be so con¬ 
strued as to prejudice any claims of the United States, or of any par¬ 
ticular state. 

SECTION IV. 

1. The United States shall guaranty to every state in this Union a 
republican form of government, and shall protect each of them against 
invasion; and on application of the legislature, or of the executive 
(when the legislature cannot be convened), against domestic violence. 

ARTICLE V. 

Of Amendments. 

1. The Congress, w'henever two-thirds of both Houses shall deem it 
necessary shall propose amendments to this Constitution, or, on the ap- 


172 


CONSTITUTION OP 


plication of the legislatures of two-thirds of the several states, shall 
call a convention for proposing amendments, which, in either case, 
shall be valid to all intents and purposes, as part of this Constitution, 
when ratified by the legislatures of three-fourths of the several states, 
or by conventions in tnree-fourths thereof, as the one or the other mode 
of ratification may be proposed by the Congress; provided that no 
amendment, which may be made prior to the year one thousand eight 
hundred and eight, shall in any manner affect the first and fourth 
clauses in the ninth section of the first article; and that no state, with¬ 
out its consent, shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

Miscellaneous. 

1. All debts contracted, and engagements entered into, before the 
adoption of this Constitution, shall be as valid against the United 
States under this Constitution as under the Confederation. 

2. This Constitution, and the laws of the United States, which shall 
be made in pursuance thereof; and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall be bound thereby, 
any thing in the Constitution or laws of any state to the contrary 
notwithstanding, 

3. The senators and representatives before mentioned, and the mem¬ 
bers of the several state legislatures, and all executive and judicial 
officers, both of the United States and of the several states, shall be 
bound by oath or affirmation, to support this Constitution; but no reli¬ 
gious test shall ever be required as a qualification to any office or public 
trust under the United States. 

ARTICLE VIL ' 

Of the Katification. 

1. The ratification of the conventions of nine states, shall be sufficient 
for the establishment of this Constitution between the states so ratify¬ 
ing the same. 

Done in convention, by the unanimous consent of tlie States present, the 
seventeenth day of September, in the year of our Lord one thousand 
seven hundred and eighty-seven, and of the independence of the United 
States of America tlie twelfth. In witness whereof we have hereunto 
subscribed our names. 

GEO. WASHINGTON, President, 

arid Deputy from Virginia. 

Mew Hampshire —John Langdon, Nicholas Gilman. Massachu¬ 
setts —Nathaniel Gorham^ Rufus King. Connecticut —William S. 
Johnson, Roger Sherman. Meiv York —Alexander Hamilton. Mew 
Jersey —William Livingston, David Brearley, William Paterson, Jon¬ 
athan Dayton, Pennsylvania —Benjamin Franklin, Thomas Mifflin, 
Robert Morris, George Clymer, Thomas Fitzsimmons, Jared Ingersoll, 
James Wilson, Gouverneur Morris. Delaware —George Read, Gun- 


THE UNITED STATES. 


173 


ning Bedford, jun., John Dickinson, Richard Bassett, Jacob Broom. 
Maryland —Jame$ M‘Henry, Daniel of St. Thomas Jenifer, Daniel 
Carroll. Virginia —John Blair, James Madison, jun. J^orth Caro¬ 
lina —William Blount, Richard Dobbs Spaight, Hugh Williamson. 
South Carolina —John Rutledge, Charles Cotesvvorth Pinckney, 
Charles Pinckney, Pierce Butler. Georgia —William Few, Abraham 
Baldwin. Attest: ) 

William Jackson, Secretary. J 


[Congress at their first session under the Constitution., held in the 
city of JVeio York., in 1789, proposed to the legislatures of the seve¬ 
ral States twelve amendments, ten of which only were adopted. 
They are the first ten of the following amendments; and they 
ivere ratified by three-fourths, the constitutional number, of the 
States, on the \5th of December, 1791. The IHA amendment was 
proposed at the first session of the third Congress, and was declared 
in a message from the President of the United States to both 
Houses of Congress, dated the 8th of January, 1798, to have been 
adopted by the constitutional number of States. The \’2th amend¬ 
ment, which teas proposed at the first session of the eighth Con¬ 
gress, was adopted by the constitutional number of States in the 
year 1804, according to a public notice by the Secretary of State, 
dated the 25th of September, 1804.] 

AMENDMENTS 

To the Constitution pf the United States, ratified according to the provisions 
of the Fifth Article of the foregoing Constitution. 

Article I. Congress shall make no law respecting an establishment 
of religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peaceabl}’’ 
to assemble, and to petition the government for a redress of grievances. 

Art. II. A well regulated militia being necessary to the security of 
a free state, the right of the people to keep and bear arips shall not be 
infringed. 

Art. III. No soldier shall, in time of peace, be quartered in any house 
without the consent of the owner, nor in time of war but in a manner to 
be prescribed by law. 

Art. IV'. The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, aird no warrants shall issue but upon probable cause, 
supported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized. 

Art. V. No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a grand jury, 
except in cases arising in the land or naval forces, or in the militia, when 

\b^ 



174 


CONSTITUTION OF 


in actual service in time of war or public danger; nor shall any person 
be subject, for the same offence, to be twice put in jeopardy of life or 
limb; nor shall be compelled, in any criminal case, to be a witness 
against himself, nor be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for public use with¬ 
out just compensation. 

Art. VI. In all criminal prosecutions, the accused shall enjoy the 
right to a speedy and public trial, by an impartial jury of the state and 
district wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of the na¬ 
ture and cause of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining witnesses in his 
favor, and to have the assistance of counsel for his defence. 

Art. VII. In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, and 
no fact tried by a jury shall be otherwise re-examined in any court of 
the United States, than according to the rules of the common law. 

Art. VIII. Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

, Art. IX. The enumeration, in the Constitution, of certain rights, 
ihall not be construed to deny or disparage others retained by the people. 

Art. X. The powers not delegated to the United States by the Con¬ 
stitution, nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. 

Art. XI. The judicial power of the United States shall not be con¬ 
strued to extend to any suit, in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or by citi¬ 
zens or subjects of any foreign state. 

Art. XII. The electors shall meet in their respective States, and vote 
by ballot for President and Vice-President, one of whom, at least, shall 
not be an inhabitant of the same state with themselves; they shall 
name in their ballots the person voted for as President, and in distinct bal¬ 
lots the person voted for as Vice-President, and they shall make distinct 
lists of all persons voted for as President, and of all persons voted for 
as Vice-President, and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat of the government 
of the United States, directed to the President of the Senate. 7'he 
President of the Senate shall, in the presence of the Senate and House 
of Representatives, open all the certificates, and the votes shall then bo 
counted; the person having the greatest number of votes for President 
shall be the President, if such number be a majority of the whole num¬ 
ber of electors appointed; and if no person have such majority, then 
from the persons having the highest numbers, not exceeding three, on the 
list of those voted for as President, the House of Representatives shall 
choose immediately, by ballot, the President. But in choosing the Pre¬ 
sident, the votes shall be taken by states, the representation from each 
state having one vote; a quorum for this purpose shall consist of a 
member or members from two-thirds of the states, and a majority of 
all the states shall be necessary to a choice. And if the House of Re- 


THE'UNITED STATES. 


175 


presentatives shall not choose a President, whenever the right of choice 
shall devolve upon them, before the fourth da}'^ of March next follow¬ 
ing, then the Vice-President shall act as President, as in the case of the 
death or other constitutional disability of the President. I'he person 
having the greatest number of votes as Vice-President shall be the Vice- 
President, if such number be a majority of the whole number of electors 
appointed, and if no person have a majority, then from the two highest 
numbers on the list the Senate shall choose the Vice-President; a quo 
rum for the purpose shall consist of two-thirds of the whole number of 
senators, and a majority of the whole number shall be necessary to a 
choice. But no person constitutionally ineligible to the office of Presi¬ 
dent, shall be eligible^to that of Vice-President of the United States. 

[Notk ]. Another amendment was proposed as article XIII. at the second 
session of the eleventh Congress, hut not having been ratified by a sufficient 
number of the stales, has not become valid, as a part of the Constitution of 
the United States. It is erroneously given as a part of the Constitution, in 
page 74, vol. I. Laws of the United States, published by Bioreri &; Duane, 
in 1815.] 

[Note 2. The Constitution, as above printed, has been carefully compared 
with the copy in the Laws of the United States, published by authority, and 
also with one in the National Calendar for the year 1826, which was copied 
from the roll in the Department of State.] 

[Note 3. The ratification of the Constitution by the state of New Hamp¬ 
shire, being the 9th in order, was laid before Congress on the 2d of July, 1788, 
and, with the ratifications of the other states, was referred to a committee, to 
report an act for carrying the new system into operation. An act for this 
purpose was reported on the 14th of tlie same month, and was passed on the 
13th of September following .]—American Almanac, 1831. 


WASHINGTON’S FAREWELL ADDRESS. 


Friends and Fellow Citizens^ 

The period for a new election of a citizen to administer the execu¬ 
tive government of the United States, being not far distant, and the 
time actually arrived when your thoughts must be employed in desig¬ 
nating the person who is to be clothed with that important trust, it ap¬ 
pears to me proper, especially as it may conduce to a more distinct * 
expression of the public voice, that I should now apprize you of the 
resolution I have formed, to decline being considered among the num¬ 
ber of those out of w'hom the choice is to be made. 

1 beg you at the same time to do me the justice to be assured, that 
this resolution has not been taken, without a strict regard to all the con¬ 
siderations appertaining to the relation which binds a dutiful citizen to 
his country; and that in withdrawing the tender of service, which silence 
in my situation might imply, I am influenced by no diminution of zeal 
for your future interest; no deficiency of grateful respect for your past 
kindness: but am supported by a full conviction, that the step is com¬ 
patible with both. 

'J’he acceptance of, and continuance hitherto in, the office to which 
your suffrages nave twice called me, have been an uniform sacrifice of 
inclination to the opinion of duty, and to a deference for what appeared 
to be your desire. I constantly hoped that it would have been much 
earlier in my power, consistently with motives which I was not at lib¬ 
erty to disregard, to return to that retirement from which I had been 
reluctantly dr'iwn. The strength of my inclination to do this, previous 
to the last election, had even led to the preparation of an address to 
declare it to you; but mature reflection on the then perplexed and crit¬ 
ical posture of our affairs with foreign nations, and the unanimous advice 
of persons entitled to my confidence, impelled me to abandon the idea. 

I rejoice that the state of your concerns, external as well as internal, 
no longer renders the pursuit of inclination incompatible with the sen¬ 
timent of duty or propriety; and am persuaded, whatever partiality 
may be retained for my services, that in the present circumstances of our 
country, you will not disapprove of my determination to retire. 

I’he impressions with which I first undertook the arduous trust, were 
explained on the proper occasion. In the discharge of this trust I will 
only say, that I have with good intentions, contributed towards the or¬ 
ganization and administration of the government, the best exertions of- 
which a very fallible judgment was capable. Not unconscious, in the 

176 



177 


Washington’s farewell address. 

outset, of the inferiority of my qualifications, experience in my own 
eyes, perhaps still more in the eyes of others, has strengthened the mo¬ 
tives to diffidence of myself; and every day the increasing weight of 
years admonishes me more and more, that the shade of retirement is as 
necessary to me as it will be welcome. Satisfied that if any circum¬ 
stances have given peculiar value to my services, they were temporary, 
I have the consolation to believe, that while choice and prudence invite 
me to quit the political scene, patriotism does not forbid it. 

In looking forward to the moment which is to tertninate the career 
of my political life, my feelings do not permit me to suspend the deep 
acknowledgment of that debt of gratitude which I owe to my beloved 
country, for the many honors it has conferred upon me; still more for 
the steadfast confidence with which it has supported me; and for the 
opportunities I have thence enjoyed of manifesting my inviolable attach¬ 
ment, by services faithful and persevering, though in usefulness unequal 
to my zeal. If benefits have resulted to our country from these ser¬ 
vices, let it always be remembered to your praise, and as an instructive 
example in our annals, that under circumstances in which the passions, 
agitated in every direction, were liable to mislead—amidst appearances 
sometimes dubious—vicissitudes of fortune often discouraging—in situ¬ 
ations in which not unfrequently want of success has countenanced the 
spirit of criticism—the constancy of your support was the essential prop 
of the efforts and a guarantee of the plans by which they were effected. 
Profoundly penetrated with this idea, 1 shall carry it with me to my 
grave, as a strong incitement to unceasing wishes, that Heaven may 
continue to you the choicest tokens of its beneficence—that your union 
and brotherly affection may be perpetual—that the free constitution, 
which is the work of your hands, may be sacredly maintained—that its 
administration in every department may be stamped with wisdom and 
virtue—that, in fine, the happiness of the people of these States, under 
the auspices of liberty, may be made complete, by so careful a preser¬ 
vation and so prudent a use of this blessing, as will acquire to them the 
glory of recommending it to the applause, the affection, and the adop¬ 
tion, of every nation which is yet a stranger to it. 

Here, perhaps, I ought to stop.- But a solicitude for your welfa/e, 
which cannot end but with my life, and the apprehension of danger na¬ 
tural to that solicitude, urge me, on an occasion like the present, to offer 
to your solemn contemplation, and to recommend to your frequent re¬ 
view, some sentiments, which are the result of much reflection, of no 
inconsiderable observation, and which appear to me all-important to the 
permanency of your felicity as a people. These will be offered to you 
with the more freedom, as you can only see in them the disinterested 
warnings of a parting friend, who can possibly have no personal motive 
to bias his counsel. Nor can I forget as an encouragement to it, your 
indulgent reception of my sentiments on a former and not dissimilar 
occasion. 

Interwoven as is the love of liberty with every ligament of your 
hearts, no recommendation of mine is necessary to fortify or confirm 
the attachment. 


178 Washington’s farewell address. 

The unity of government, which constitutes you one people, is also 
now dear to you. It is justly so; for it is a main pillar in the edifice 
of your real independence; the support of your tranquillity at home; 
your peace abroad; of your safety, of your prosperity; of that very 
liberty which you so highly prize. But as it is easy to foresee, that from 
different causes and from different quarters, much pains will be taken, 
many artifices employed, to weaken in your minds the conviction of this 
truth; as this is the point in your political fortress against which the 
batteries of internal and external enemies will be most constantly and 
actively, (though often covertly and insidiously,) directed, it is of infi¬ 
nite moment, that you should properly estimate the immense value of 
your national union, to your collective and individual happiness; that 
you should cherish a cordial, habitual, and immoveable attachment to 
it; accustoming yourselves to think and speak of it as of the palladium 
of your political safety and prosperity; watching for its preservation 
with jealous anxiety; discountenancing whatever may suggest even a 
suspicion that it can in an)^ event be abandoned ; and indignantly frown¬ 
ing upon the first dawning of every attempt to alienate any portion of 
our country from the rest, or to enfeeble the sacred ties which now link 
together the various parts. 

For this you have every inducement of sympathy and interest. Citi¬ 
zens by birth or choice of a common country, that country has a right 
to concentrate your affections. "I'he name of American, which belongs 
to you in 3 ’our national capacity, must always exalt the just pride of 
patriotism, more than any appellation derived from local discrimina¬ 
tions. With slight shades of difference, you have the same religion, 
manners, habits, and political principles. You have in a common cause 
fought and triumphed together; the independence and liberty you pos¬ 
sess, are the work of joint councils, and joint efforts—of common dan¬ 
gers, sufferings, and successes. 

But these considerations, however powerfully they address themselves 
to 3 ’Our sensibility, are greatly outweighed by those which apply more 
immediately to your interest. Here every portion of our country finds 
the most commanding motives for carefully guarding and preserving the 
union of the whole. 

The norths in an unrestrained intercourse with the souih^ protected 
by the equal laws of a common government, finds in the productions of 
the latter, great additional resources of maritime and commercial enter- 
prize, and precious materials of manufacturing industry. The souths in 
the same intercourse, benefitting by the agency of the norths sees its 
agriculture grow and its commerce expand. Turning partly into its own 
channels the seamen of tiie norths it finds its particular navigation in¬ 
vigorated—and while it contributes in different ways, to nourish and 
increase the general mass of the national navigation, it looks forward 
to the protection of a maritime strength, to which itself is unequally 
adapted. The easf, in like intercourse with the west^ already finds, and 
in the progressive improvement of interior communications, by land and 
water, will more and more find a valuable vent for the commodities which 
it brings from abroad, or manufactures at home. The ivest derives from 


/ 


Washington’s farewell address. 179 

the east supplies requisite to its growth and comfort—and, what is 
perhaps of still greater consequence, it must of necessity owe the secure 
enjoyment of indispensable outlets for its own productions, to the 
weight, influence, and the future maritime strength of the Atlantic 
side of the unjon, directed by an indissoluble community of interest as 
one nation. Any other tenure by which the west can hold this essen¬ 
tial advantage, whether derived from its own separate strength, or from 
an apostate and unnatural connexion with any foreign power, must be 
intrinsically precarious. 

While then every part of our country thus feels an immediate and 
particular interest in union, all the parts combined cannot fail to find in 
the united mass of means and efforts, greater strength, greater resource, 
proportionably greater security from external danger, a less frequent 
interruption of their peace by foreign nations; and, what is of inestima¬ 
ble value, they must derive from union, an exemption from those broils 
and wars between themselves, which so frequently afflict neighboring 
countries, not tied together by the same government, which their own 
rivalships alone would be sufficient to produce; but which opposite 
foreign alliances, attachments, and intrigues, would stimulate and em¬ 
bitter. Hence, likewise, they will avoid the necessity of those over¬ 
grown military establishments, which, under any form of government, 
are inauspicious to liberty, and which are to be regarded as particularly 
hostile to republican liberty. In this sense it is that your union ought to 
be considered as a main prop of your liberty, and that the love of the one 
ought to enclear to you the preservation of the other. 

These considerations speak a persuasive language to every reflecting 
and virtuous mind, and exhibit the continuance of the union as a pri¬ 
mary object of patriotic desire. Is there a doubt whether a common 
government can embrace so large a sphere j Let experience solve it. 
To listen to mere speculation in such a case w'ere criminal. We are 
authorized to hope that a proper organization of the whole, with the 
auxiliary agency of governments for the respective subdivisions, will 
afford a happ}' issue to the experiment. It is well worth a fair and full 
experiment. With such powerful and obvious motives to union, affect¬ 
ing all parts of our country, while experience shall not have demon¬ 
strated its impracticability, there will always be reason to distrust the 
patriotism of those who, in any quarter, may endeavor to weaken its 
bands. 

In contemplating the causes which may disturb our union, it occurs as 
matter of serious concern, that any ground should have been furnished 
for characterizing parties by geographical discriminations— J^orthern 
and Southern—Atlantic and Western: whence designing men may 
endeavor to excite a belief that there is a real difference of local inter¬ 
ests and views. One of the expedients of party to acquire influence, 
within particular districts, is to misrepresent the opinions and aims 
of other districts. You cannot shield yourselves too much against 
the jealousies and heart-burnings which spring from these misrepre¬ 
sentations : they tend to render alien to each other, those who 
ought to be bound together by fraternal affection. The inhabitants 


180 'Washington’s farewell address. 

of our western country have lately had a useful lesson on this head. 
They h&ve seen, in the negotiation by the executive, and in the unani- 
njous ratification by the senate, of the treaty with Spain, and in the 
universal satisfaction at that event throughout the United States, a 
decisive proof how unfounded were the suspicions prop|gated among 
them of a policy in the general government, and in the Atlantic States, 
unfriendly to their interests in regard to the Mississippi. They have 
been witnesses to the formation of two treaties, that with Great Britain 
and that with Spain, which secure to them every thing they could desire, 
in respect to our foreign relations, towards confirming their prosperity. 
Will it not be their wisdom to rely for the preservation of these advan¬ 
tages on the union by which they were procured? Will they not 
henceforth be deaf to those advisers, if such there are, who would sever 
them from their brethren, and connect them with aliens? 

To the efficacy and permanency of your union, a government for the 
whole is indispensable. Ko alliances, however strict, between the 
parts can be an adequate substitute; they must inevitably experience 
the infractions and interruptions which all alliances in all times have 
experienced. Sensible of this momentous truth, you have improved 
upon your first essay, by the adoption of a constitution of government 
better calculated than your former, for an intimate union, and for the 
efficacious management of your common concerns. This government, 
the offspring of your own choice, uninfluenced and unawed ; adopted 
upon full investigation and mature deliberation; completely free in its 
principles; in the distribution of its powers, uniting security with energy, 
and containing within itself a provision for its own amendments, has a 
just claim to your confidence and your support. Respect for its au¬ 
thority, compliance with its laws, acquiescence in its measures, are^ 
duties enjoined by the fundamental maxims of true liberty. The basis 
of our political systems is the right of the people to make and to alter 
their constitutions of government.—But the constitution which at any 
time exists, until changed by an explicit and authentic act of the whole 
people, is sacredly obligatory upon all. The very idea of the power 
and the riglit of the people to establish a government, presupposes the 
duty of every individual to obey the established government.^ 

All obstructions to the execution of the laws, all combinations and 
associations, under whatever plausible character, wdth the real design 
to direct, control, counteract, or awe the regular deliberations and ac¬ 
tions of the constituted authorities, are destructive of this fundamental 
principle, and of fatal tendency. 'Fhey serve to organize faction; to 
give it an artificial and extraordinary force; to put in the place of the 
delegated will of the nation, the will of a party, often a small, but 
artful and enterprising minority of the community; and according to 
the alternate triumphs of different parties, to make the public adminis¬ 
tration the mirror of the ill-concerted and incongruous projects of fac¬ 
tion, rather than the organ of consistent and wholesome plans, digested 
by common councils, and modified by mutual interests. 

However, combinations or associations of the above description may 
now and then answer popular ends, they are likely, in the course of 


Washington’s farewell address. 181 

time and things, to become potent engines, by which cunning, ambi¬ 
tious, and unprincipled men, will be enabled to subvert the power of 
the people, and to usurp for themselves the reins of government; de¬ 
stroying afterwards the very engines which have lifted them to unjust 
dominion. 

T’owards the preservation of your government, and the permanency 
of your present happy state, it is requisite not only that you steadily 
discountenance irregular oppositions to its acknowledged authority, but 
also that you resist with care the spirit of innovation upon its principles, 
however specious the pretexts. One method of assault may be to effect, 
in the forms of the constitution, alterations which will impair the energy of 
the system, and thus to undermine wliat cannot be difectly overthrown. 
In all the changes to which you may be invited, remember that time 
and habit are at least as necessary to fix the true character of govern¬ 
ments, as of other human institutions—that experiehce is the surest 
standard, by which to test the real tendency of the existing constitution 
of a country—that facility in Changes upon the credit of mere hypothesis 
and opinion, exposes to perpetual change, from the endless variety 
of hypothesis and opinion; and remember especially, that for the 
efficient management of your common interests, in a country so 
extensive as ours, a government of as much vigor as is consistent with 
the perfect security of liberty is indispensable. Liberty itself will find 
in such a government, with powers properly distributed and adjusted, 
its surest guardian. It is, indee4, little else than a name, where the 
government is too feeble to withstand the enterprises of faction, to 
confine each member of the society within the limits prescribed by the 
laws, and to maintain all in the secure and tranquil enjoyment of the 
rights of person and property. 

I have already intimated to you the danger of parties in the state, 
with particular references to the founding of them on geographical 
discriminations. Let me now take a more comprehensive view, and 
warn you in the most solemn manner, against the baneful effects of the 
spirit of party, generally. 

This spirit, unfortunately, is inseparable from our nature, having its 
root in the strongest passions of the human mind. It exists under 
different shapes in all governments, more or less stifled, controlled, or 
repressed; but in those of the popular form, it is seen in its greatest 
rankness, and is truly their worst enemy. 

The alternate domination of one faction over another, sharpened by 
the spirit of revenge, natural to party dissention, which in different ages 
and countries, has perpetrated the most horrid enormities, is itself a 
frightful despotism. But this leads at length to a more formal and 
permanent despotism. The disorders and miseries which reSCllt, 
gradually incline the minds of men to seek security and repose in the 
absolute power of an individual: and sooner or later the chief of 
some prevailing faction, more able or more fortunate than his competi¬ 
tors, turns this disposition to the purposes of his own elevation, on the 
ruins of public liberty. 

Without looking forward to an extremity of this kind, (which, never- 

16 


-182 Washington’s farewell address. 

theless, ought not to be entirely out of sight,) the common and contin¬ 
ual mischiefs of the spirit of party, are sufficient to make it the interest 
and duty of a wise people to discourage and restrain it. 

It serves always to distract the public councils, and enfeeble the 
public administration. _ It agitates the community with ill-founded 
jealousies and false alarms; kindles the animosity of one part against 
another; foments occasional riot and insurrection. It opens the door 
to foreign influence and corruption, which find a facilitated access to 
the government itself, through the channels of party passions. Thus 
the policy and the will of one country, are subject to the policy and the 
will of another. 

There is an opinion that parties in free countries are useful checks 
upon the administration of the government, and serve to keep alive the 
spirit of liberty. This, within certain limits, is probably true: and 
in governments of a monarchical cast, patriotism may look with indul¬ 
gence, if not with favor, upon the spirit of party. But in those of the 
popular character, in governments purely elective, it is a spirit not to 
be encouraged. From their natural tendency, it is certain there will 
always be enough of that spirit for every salutary purpose. And there 
being constant danger of excess, the effort ought to be, by force of public 
opinion, to mitigate and assuage it. A fire not to be quenched, it 
demands a uniform vigilance to prevent its bursting into a flame, lest, 
instead of warming, it should consume. 

It is important, likewise, that the habits of thinking, in a free country, 
should inspire caution in those intrusted with its administration, 
to confine themselves within their respective constitutional spheres; 
avoiding, in the exercise of the powers of one department, to encroach 
upon another. The spirit of encroachment tends to consolidate the 
powers of all the departments in one, and thus to create, whatever the 
form of government, a real despotism. A just estimate of that love of 
power, and proneness to abuse it, which predominate in the human 
heart, is sufficient to satisfy us of the truth of this position. The ne¬ 
cessity of reciprocal checks in the exercise of political power, by 
dividing and distributing it into different depositories, and constituting 
each the guardian of the public weal against invasions of the others, 
has been evinced by experiments ancient and modern; some of them 
in our country, and under our own eyes. I'o preserve them must be as 
necessary as to institute them. If, in the opinion of the people, the 
distribution or modification of the constitutional powers be in any par¬ 
ticular wrong, let it be corrected by an amendment in the way which 
the constitution designates. But let there be no change by usurpation; 
for though this, in one instance, may be the instrument of good, it is 
ihe^ustomary weapon by which free governments are destroyed. The 
precedent must always greatly overbalance in permanent evil, any 
partial or transient benefit which the use can at any time yield. 

Of all the dispositions and habits which lead to political prosperity, 
religion and morality are indispensable supports. In vain would that 
man claim the tribute of patriotism, who should labor to subvert these 
great pillars of human happiness—these firmest props of the duties of 


183 


Washington’s farewell address. 

men and citizens. The mere politician, equally with the pious man, 
ought to respect and to cherish them. A volume could not trace all their 
connexions with private and public felicity. Let it simply be asked, 
where is the security for property, for reputation, for life, if the sense 
of religious obligation desert the oaths, which are the instruments of 
investigation in courts of justice? And let us with caution indulge the 
supposition, that morality can be maintained without religion. What* 
ever may be conceded to the influence of refined education on minds 
of peculiar structlire, reason and experience both forbid us to expect 
that national morality can prevail in exclusion of religious principles. 

It is substantially true, that virtue or morality is a necessary spring 
of popular government. The rule, indeed, extends with more or less 
force to every species of free government. Who that is a sincere 
friend to it can look with indifference upon attempts to shake the foun¬ 
dation of the fabric ? 

Promote, then, as an object of primary importance, institutions for 
the general diffusion of knowledge. In proportion as the structure of 
a government gives force to public opinion, it is essential that public 
opinion should be enlightened. 

As a very important source of strength and security, cherish public 
credit. One method of preserving it is to use it as sparingly as possible, 
avoiding occasions of expense by cultivating peace; but remembering 
also, that timely disbursements to prepare for danger, frequently prevent 
much greater disbursements to repel it; avoiding likewise the accumu¬ 
lation of debt, not only by shunning occasions of expense, but by vigor¬ 
ous exertions in time of peace, to discharge the debts which unavoidable 
wars may have occasioned, not ungenerously throwing upon posterity 
the burden which we ourselves ought to bear. The execution of these 
maxims belongs to your representatives; but it is necessary that public 
opinion should co-operate. To facilitate to them the performance 
of their duty, it is essential that you should practically bear in mind, 
that towards the payment of debts there must be revenue; that to have 
revenue there must be taxes; that no taxes can be devised which are 
not more or less inconvenient and unpleasant; that the intrinsic em¬ 
barrassment inseparable from the selection of the proper objects, (which 
is always a choice of difficulties,) ought to be a decisive motive for a 
candid construction of the conduct of the government in making it, and 
for a spirit of acquiescence in the measures for obtaining revenue which 
the public exigencies may at any time dictate. 

Observe good faith and justice towards all nations; cultivate peace 
and harmony with all: religion and morality enjoin this conduct; and 
can it be that good policy does not equall}’’ enjoin it? It will be 
worthy of a free, enlightened, and, at no distant period, a great nation, 
to give to mankind the magnanimous and too novel example of a people 
always guided by an exalted justice and benevolence,—Who can doubt 
that in the course of time and things, the fruits of such a plan would 
richly repay any temporary advantages which might be lost by a steady 
adherence to it. Can it be, that Providence has not connected the 
permanent felicity of a nation with its virtue? The experiment, at 


184 Washington’s farewell address. 

least, is recommended by every sentiment which ennobles human na¬ 
ture. Alas! is it rendered impossible by its vices'? 

In the execution of such a plan, nothing is more essential than that per¬ 
manent inveterate antipathies against particular nations, and passion¬ 
ate attachments for others, should be excluded; and that in place of 
them, just and amicable feelings towards all should be cultivated. The 
nation which indulges towards another an habitual hatred, or an habitual 
fondness, is in some degree a slave. It is a slave to its animosity or 
to its affection, either of which is sufficient to lead it astray from its 
duty and its interest.—Antipathy it; one nation against another, dis¬ 
poses each more readily to offer insult and injury, to lay hold of slight 
causes of umbrage, and to be haughty and intractable, when accidental 
or trifling occasions of dispute occur. 

Hence, frequent collisions, obstinate, envenomed, and bloody con¬ 
tests. The nation, prompted by ill-will and resentment, sometimes 
impels to war the government, contrary to the best calculations of 
policy. The government sometimes participates in the national pro¬ 
pensity, and adopts, through passion, what reason would reject; at 
other times, it makes the animosity of the nation subservient to projects 
of hostility instigated by pride, ambition, and other sinister and perni¬ 
cious motives. The peace often, sometimes perhaps the liberty of 
nations, has been the victim. 

So, likewise, a passionate attachment of one nation for another, pro 
duces a variety of evils. Sympathy for the favorite nation, facilitating 
the illusion of an imaginary common interest, in cases where no real 
common interest exists, and infusing into one the enmities of the other, 
betrays the former into a participation in the quarrels and wars of the 
latter, without adequate inducements or justification. It leads also to 
concessions to the favorite nation, of privileges denied to others, which 
are apt doubly to injure the nation making the concessions, by unne¬ 
cessarily parting with what ought to have been retained ; and by ex¬ 
citing jealousy, ill-will, and a disposition to retaliate, in the parties 
from whom equal privileges are withheld, and it gives to ambitious, 
corrupted, or deluded citizens, (who devote themselves to the favorite 
nation,) facility to betraj^ or sacrifice the interests of their own coun¬ 
try, without odium, sometimes even with popularity; gilding with the 
appearances of a virtuous sense of obligation, a commendable deference 
for public opinion, or a laudable zeal for public good, the base or foolish 
compliances of ambition, corruption, or infatuation. 

As avenues to foreign influence, in innumerable ways, such attach¬ 
ments are particularly alarming to the truly enlightened and indepen¬ 
dent patriot. How many opportunities do they afford to tamper with 
domestic factions, to practice the arts of seduction, to mislead public 
opinion, to influence or aw'e the public councils! Such an attach¬ 
ment of a small or weak, towards a great and powerful nation, dooms 
the former to be the satellite of the latter. Against the insidious tviles 
of foreign influence, (I conjure you to believe me, fellow'-citizens,) the 
jealousy of a free people ought to be constantly awake; since history 
and experience prove that foreign influence is one of the most baneful 


Washington’s farewell address. 


185 


foes of republican government. But that jealousy, to be useful, must 
be impartial; else it becomes the instrument of the very influence to 
be avoided, instead of a defence against it. Excessive partiality for 
one foreign nation, and excessive dislike of another, cause those whom 
they actuate to see danger only on one side, and serve to veil, and even 
second the arts of influence on the other. Real patriots, who may 
resist the intrigues of the favorite, are liable to become suspected and 
odious, while its tools and dupes usurp the applause and confidence 
of the people, to surrender their interests. 

The great rule of conduct for us, in regard to foreign nations, is, in 
extending our commercial relations, to have with them as little political 
connexion as possible. So far as we have already formed engagements, 
let them be fulfilled with perfect good faith. Here let us stop. 

Europe has a set of primary interests, which to us have none, or a 
very remote, relation. Hence she must be engaged in frequent contro¬ 
versies, the causes of which are essentially foreign to our concerns. 
Hence, therefore, it must be unwise in us to implicate ourselves by 
artificial lies, in the ordinary vicissitudes of her politics, or the ordinary 
combinations and collisions of her friendships or enmities. 

Our detached and distant situation invites and enables us to pursue a 
different course. If we remain one people, under an efficient govern¬ 
ment, the period is not far off when we may defy material injury from 
external annoyance; when we may take such an attitude as will cause 
the neutrality we may at any time resolve upon, to be scrupulously 
respected: When belligerent nations, under the impossibility of 
making acquisitions upon us, will not lightly hazard the giving us pro¬ 
vocation; when we may choose peace or war, as our interest, guidecj 
by justice, shall counsel. 

Why forego the advantages of so peculiar a situation? Why quit 
our owm to stand upon foreign ground? Why, by interweaving our 
destiny with that of any part of Europe, entangle our peace and pros¬ 
perity in the toils of European ambition, rivalship, interest, humor, or 
caprice ? 

It is our true policy to steer clear of permanent alliances with any 
portion of the foreign wmrld; so far, I mean, as we are now at liberty 
to do it; for let me not be understood as capable of patronizing infidel¬ 
ity to existing engagements. I hold the maxim no less applicable to 
public than to private affairs, that honesty is always the best policy. I 
repeat it therefore, let those engagements be observed in their genuine 
sense. But in my opinion, it is unnecessary, and would be unwise, to 
extend them. 

Taking care always to keep ourselves, by suitable establishments, on 
a respectable defensive posture, we may safely trust to temporary alli¬ 
ances for extraordinaiy emergencies. - 

Harmony, and a liberal intercourse with an nations, are recommend¬ 
ed by policy, humanity, and interest. But even our commercial policy 
should hold an equal and impartial hand; neither seeking nor granting 
exclusive favors or preferences; consulting the natural course of things; 
diffusing and diversifying by gentle means, the streams of commerce, 


186 


Washington’s farewell address. 


but forcing nothing; establishing, with powers so disposed,—in order to 
give trade a stable course, to define the rights of our merchants, and 
to enable the government to support them,—conventional rules of inter¬ 
course, the best that present circumstances and mutual opinion will 
permit, but temporary and liable to be from time to time abandoned or 
varied, as experience and circumstances shall dictate; constantly keep¬ 
ing in view, that it is folly in one nation to look for disinterested favors 
from another; that it must pay with a portion of its independence for 
whatever it may accept under that character; that by such acceptance, 
it may place itself in the condition of having given equivalents for nom¬ 
inal favors, and yet of being reproached with ingratitude for not giving 
more. There can be no greater error than to expect or calculate upon 
real favors from nation to nation. It is an illusion which experience 
must cure, which a just pride ought to discard. 

In offering to you, my countrymen, these counsels of an old and 
affectionate friend, I dare not hope they will make the strong and last¬ 
ing impression I could wish—that they will control the usual current of 
the passions, or prevent our nation from running the course which has 
hitherto marked the destiny of nations. But if I may even flatter my¬ 
self, that they may be productive of some partial benefit, some occa¬ 
sional good; that they may now and then recur to moderate the fury 
of party spirit; to warn against the mischiefs of foreign intrigue; to 
guard against the impostures of pretended patriotism; this hope will be 
a full recompense for the solicitude for your welfare, by which they have 
been dictated. 

How far, in the discharge of my official duties, I have been guided 
by the principles which have been delineated, the public records ajid 
other evidences of my conduct must witness to you and to the world. 
To myself, the assurance of my own conscience is, that I have at least 
believed myself to be guided by them. 

In relation to the still subsisting war in Europe, my proclamation of 
the 22d of April, 1793, is the index to my plan. Sanctioned by your 
approving voice, and by that of your representatives in both houses of 
Congress, the spirit of that measure has continually governed me; un¬ 
influenced by any attempts to deter or divert me from it. 

After deliberate examination, with the aid of the best lights I could 
obtain, I was well satisfied that our country, under all the circum¬ 
stances of the case, had a right to take, and was bound in duty and in¬ 
terest to take a neutral position. Having taken it, I determined, as far 
as should depend upon me, to maintain it with moderation, perse¬ 
verance and firmness. The considerations which respect the right to 
hold this conduct, it is not necessary on this occasion to detail. I will 
only observe, that according to niy understanding of the matter, that 
right, so far from beit>g d^ied by any of the belligerent powers, has 
been virtually admitted liy all. 

The duty of holding a neutral conduct may be inferred, without any 
thing more, from the obligation which justice and humanity impose on 
every nation, in cases iti which it is free to act, to maintain inviolate the 
relations of peace and antity towards other nations. 


' Washington’s farewell address. 187 

The inducements of interest for observing that conduct, will best be 
referred to your own reflections and experience. With me, a predomi¬ 
nant motive has been to endeavor to gain time to our country to settle 
and mature its yet recent institutions, and to progress, without interrup¬ 
tion, to that degree of strength and consistency, which is necessary to 
give it, humanly speaking, the command of its own fortunes. 

Though in reviewing the incidents of my administration, I am uncon¬ 
scious of intentional error; I am nevertheless too sensible of my defects 
not to think it probable that I have committed many errors. What¬ 
ever they may bp, I fervently beseech the Almighty to avert or mitigate 
the evils to which they may tend. I shall also carry with me the hope 
that my country will never cease to view them with indulgence; and 
that after forty-five years of my life dedicated to its service, with an 
upright zeal, the faults of incompetent abilities will be consigned to ob¬ 
livion, as myself must soon be to the mansions of rest. 

Relying on this, as in other things, and actuated by that fervent love 
towards it, which is so natural to a man who view’s in it the native soil 
of himself and his progenitors for several generations; I anticipate with 
pleasing expectation that retreat, in which I promise myself to realize, 
wdthout alloy, the sweet enjoyment of partaking, in the midst of my 
fellow-citizens, the benign influence of good laws, under a free govern¬ 
ment—the ever favorite object of my heart, and the happy reward, as I 
trust, of our mutual cares, labors, and dangers. 

United States, September 17, 1796. 


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188 


ORDINArsCE OP 1787 . 


ORDINANCE OF 1787. 


The following Ordinance is the fundamental law of the States of 
Ohio, Indiana, Illinois, and Territoiy of Michigan. It is fundamental^ 
because, passed prior to the Constitution ,—and is a matter of com¬ 
pact between the several states vesting rights ,—which the Constitu¬ 
tion, by its terms, did not control. It was reported by Nathan Dane, 
celebrated, both as the author of this Ordinance, and of a Digest of 
American Law. 

IN CONGRESS, JULY 13 , 1787 - 

An Ordinance for the government of the territory of the United States, north¬ 
west of the river Ohio. 

Be IT ORDAINED, by the United States in Congress assembled, that 
the said territory, for the purposes of temporary government, be one 
district; subject, however, to be divided into two districts, as future cir¬ 
cumstances may, in the opinion of Congress, make it expedient. 

Be it ordained, by the authority aforesaid, that the estates both of 
resident and non-resident proprietors in the said territory, dying intes¬ 
tate, shall descend to, and be distributed among their children, and the 
descendants of a deceased child, in equal parts; the descendants of a 
deceased child or grand-child, to take the share of their deceased parent, 
in equal parts, among them; and where there shall be no children or 
descendants, then in equal parts to the next of kin, in equal degree; and 
among collaterals, the children of a deceased brother or sister of the intes¬ 
tate shall have, in equal parts, among them, their deceased parent’s share; 
and there shall in no case be a distinction between kindred of the whole 
and half blood; saving in all cases to the widow of the intestate, her 
third part of the real estate for life, and one third part of the personal 
estate; and this law relative to descents and dower, shall remain in full 
force until altered by the legislature of the district. And until the gov¬ 
ernor and judges shall adopt laws as hereinafter mentioned, estates in 
the said territory may be devised or bequeathed by wills in writing, 
signed and sealed by him or her, in whom the estate may be (being of 
full age), and attested by three witnesses; and real estates may be 
conveyed by lease and release, or bargain and sale, signed, sealed and 
delivered by the person, being of full age, in whom the estate may be, 
and attested by two witnesses, provided such wills be duly proved, and 
such conveyances be acknowledged, or the execution thereof duly 



ORDINANCE OF 1787 . 


189 


proved, and be recorded within one year after proper magistrates, courts, 
and registers shall be appointed for that purpose; and personal property 
may be transferred by delivery, saving, however, to the French and Ca¬ 
nadian inhabitants, and other settlers of the Kaskaskias, Saint Vincents, 
and the neighboring villages, who have heretofore professed themselves 
citizens of Virginia, their laws and customs now in force among them, 
relative to descent and conveyance of property. 

Be it ordained^ by the authority aforesaid, that there shall be ap¬ 
pointed from time to time, by Congress, a governor, whose commission 
shall continue in force for the term of three years, unless sooner re¬ 
voked by Congress; he shall reside in the district, and have a freehold 
estate therein, in one thousand acres of land, while in the exercise of his 
office. There shall be appointed from time to time, by Congress, a sec¬ 
retary, whose commission shall continue in force for four years, unless 
sooner revoked; he shall reside in the district, and have a freehold es¬ 
tate therein, in five hundred acres of land, while in the exercise of his 
office; it shall be his duty to keep and preserve the acts and laws pass¬ 
ed by the legislature, and the public records of the district, and the pro¬ 
ceedings of the governor in his executive department; and transmit au¬ 
thentic copies of such acts and proceedings, every six months, to the 
secretary of Congress. There shall also be appointed a court to consist 
of three judges, any two of whom to form a court, who shall have a 
common law jurisdiction, and reside in the district, and have each 
therein a freehold estate in five hundred acres of land, while in the ex¬ 
ercise of their offices; and their commissions shall continue in force 
during good behavior. 

The governor and judges, or a majority of them, shall adopt and pub¬ 
lish in the district, such laws of the original states, criminal and civil, 
as may be necessary, and best suited to the circumstances of the district, 
and report them to Congress, from time to time, which laws shall be in 
force in the district until the organization of the general assembly there¬ 
in, unless disapproved of by Congress; but afterwards, the legislature 
shall have authority to alter them as they shall think fit. 

The governor for the time being, shall be commander-in-chief of the 
militia, appoint and commission all officers in the same, below the rank 
of general officers. All general officers shall be appointed and commis¬ 
sioned by Congress. 

Previous to the organization of the general assenrbly, the governor 
shall appoint such magistrates and other civil officers, in each county 
or township, as he shall find necessary for the preservation of the peace 
and good order in the same. After the general assembly shall be or¬ 
ganized, the powers and duties of magistrates and other civil officers 
shall be regulated and defined by the said assembly; but all magistrates 
and other civil officers, not herein otherwise directed, shall, during the 
continuance of this temporary government, be appointed by the governor. 

For the prevention of crimes and injuries, the law's to be adopted or 
made, shall have force in all parts of the district, and for the execution 
of process, criminal and civil, the governor shall make proper divisions 
thereof; and he shall proceed from time to lime, as circumstances may 


190 


ORDINANCE OF 1787 . 


require, to lay out the parts of the district in which the Indian titles 
shall have been extinguished, into counties and townships, subject, 
however, to such alterations as may thereafter be made by the legis¬ 
lature. 

So soon as there shall be five thousand free male inhabitants, of full 
age, in the district, upon giving proof thereof to the governor, they shall 
receive authority, with time and place, to elect representatives from 
their counties or townships, to represent them in the general assembly: 
provided, that for every five hundred free male inhabitants there shall 
be one representative, and so on progressively with the number of free 
male inhabitants, shall the right of representation increase, until the 
number of representatives shall amount to twenty-five, after which the 
number and proportion of representatives shall be regulated by the legis¬ 
lature; provided^ that no person be eligible or qualified to act as a repre¬ 
sentative, unless he shall have been a citizen of one of the United States 
three years, and be a resident in the district, or unless he shall have re¬ 
sided in the district three years, and in either case shall likewise hold in 
his own right, in fee simple, two hundred acres of land within the same; 
provided also^ that a freehold in fifty acres of land in the district, having 
been a citizen of one of the states, and being resident in the district, or 
the like freehold and two years residence in the district, shall be neces¬ 
sary to qualify a man as an elector of a representative. 

The representative thus elected, shall serve for the term of two years, 
and in case of the death of a repesentative, or removal from office, the 
governor shall issue a writ to the county or township for which he was 
a member, to elect another in his stead, to serve for the residue of 
the term. 

The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative coun¬ 
cil shall consist of five members, to continue in office five years, unless 
sooner removed by Congress, any three of whom to be a quorum, and 
the members of the council, shall be nominated and appointed in the 
following manner, to wit: as soon as representatives shall be elected, 
the governor shall appoint a time and place for them to meet together, 
and, when met, they shall nominate ten persons, residents in the district, 
and each possessed of a freehold in five hundred acres of land, and re¬ 
return their names to Congress; five of whom Congress shall appoint and 
commission to serve as aforesaid; and whenever a vacancy shall happen 
in the council, by death or removal from office, the house of representa¬ 
tives shall nominate two persons, qualified as aforesaid, for each vacan¬ 
cy, and return their names to Congress, one of whom. Congress shall 
appoint and commission for the residue of the term; and every five 
years, four months at least before the expiration of the time of service 
of the members of council, the said house shall nominate ten persons, 
qualified as aforesaid, and return their names to Congress, five of whom 
Congress shall appoint and commission to serve as members of the coun¬ 
cil five years, unless sooner removed. And the governor, legislative 
council, and house of representatives, shall have authority to make laws 
in all cases for the good government of the district, not repugnant to the 


ORDINANCE OF 1787 . 


191 


principles and articles in this ordinance established and declared. And 
all bills having passed by a majority in the house, and by a majority 
in the council, shall be referred to the governor for his assent; but no 
bill or legislative act whatever, shall be of any force without his assent. 
The governor shall have power to convene, prorogue, and dissolve the 
general assembly, when in his opinion it shall be expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an oath or 
affirmation of fidelity, and of office—the governor before the president 
of Congress, and all other officers before the governor. As soon as a 
legislature shall be formed in the district, the council and house, assem¬ 
bled in one room, shall have authority by joint ballot to elect a delegate 
to Congress, who shall have a seat in Congress, with the right of de¬ 
bating, but not of voting, during this temporary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and 
constitutions, are erected; to fix and establish those principles as the 
basis of all laws, constitutions, and governments, which forever hereaf¬ 
ter shall be formed in the said territory; to provide also for the esta¬ 
blishment of states, and permanent government therein, and for their 
admission to a share in the federal councils on an equal footing with 
the original states, at as early periods as may be consistent with the 
general interest: 

It is hereby ordained, and declared^ by the authority aforesaid, that 
the following articles shall be considered as articles of compact between 
the original states and the people and states in the said territory, and 
forever remain unalterable, unless by common consent, to wit: 

Article I. No person, demeaning himself in a peaceable and order¬ 
ly manner, shall ever be molested on account of his mode of worship 
or religious sentiments in the said territory. 

Art. II. The inhabitants of the said territory shall always be enti¬ 
tled to the benefit of the writ of habeas corpus, and of the trial by 
jury; of a proportionate representation of the people in the legislature, 
and of judicial proceedings according to the course of the common law; 
all persons shall be bailable unless for capital offences, where the proof 
shall be evident, or the presumption great; all fines shall be moderate, 
and no cruel or unusual punishments shall be inflicted; no man shall 
be deprived of his liberty or property, but by the judgment of his 
peers, or the law of the land; and should the public exigencies make 
it necessary for the common preservation to take any person’s property, 
or to demand his particular services, full compensation shall be made for 
the same; and in the just preservation of rights and property, it is un¬ 
derstood and declared, that no law ought ever to be made, or have 
force in the said territory, that shall in any manner whatever, interfere 
with, or affect private contracts or engagements, bona fide, and without 
fraud previously formed. 

Art. III. Religion, morality, and knowledge, being necessary to 
good government and the happiness of mankind, schools and the means 
of education shall forever be encouraged. The utmost good faith shall 


192 


ORDINANCE OF 1787 - 


always be obseiwed towards the Indians; their lands and property shall 
never be taken from them without their consent; and in their property, 
rights, and liberty, they never shall be invaded or disturbed, unless 
in just and lawful wars authorized by Congress; but laws founded in 
justice and humanity, shall, from time to time, be made, for preventing 
wrongs being done to them, and for preserving peace and friendship 
with them. 

Art. 1 V^ The said territory, and the states which may be formed 
therein, shall ftrever remain a part of this confederacy of the United 
States of America, subject to the articles of confederation, and to such 
alteration therein, as shall be constitutional!}'^ made; and to all the acts 
and ordinances of the United States in Congress assembled, con¬ 
formable thereto. The inhabitants and settlers in the said territory, 
shall be subject to pay a part of the federal debts contracted, or to be 
contracted, and a proportional part of the expenses of government, to 
be apportioned on them, by Congress, according to the same common 
rule and measure by which apportionments thereof shall be made on 
the other states; and the taxes for paying their proportion, shall be laid 
and levied by the authority and direction of the legislatures of the dis¬ 
trict, or districts, or new states, as in the original states, within the 
time agreed upon by the United States in Congress assembled. The 
legislatures of those districts, or new states, shall never interfere with 
the primary disposal of the soil b}' the United States in Congress assem¬ 
bled, nor with any regulations Congress may find necessary for securing 
the title in such soil to the bona fide purchasers. No tax shall be im¬ 
posed on lands the property of the United States; and in no case shall 
non-resident proprietors he taxed higher than residents. The navigable 
waters leading into the Mississippi and St. Lawrence, and the carrying 
places between the same shall be common highways, and forever free, 
as well to the inhabitants of the said territory, as to the citizens of the 
United States, and those of any other states that may be admitted into 
the confederacy, without any tax, impost, or duty therefor. 

Art. V. There shall be formed in the said territory, not less than 
three, nor more than five states; and the boundaries of the states, as 
soon as Virginia shall alter her actmf session and consent to the same, 
shall become fixed and established as follows, to wit: The western 
state in the said territory shall be bounded by the Mississippi, the 
Ohio, and Wabash rivers; a direct line drawn, from the Wabash and 
Post Vincents due north to the territorial line between the United 
States and Canada, and by the said territorial line to the Lake of the 
Woods and Mississippi. I'he middle state shall be bounded by the 
said direct line, the Wabash from Post Vincents to the Ohio, by the 
Ohio, by a direct line drawn due north from the mouth of the Great 
Miami to the said territorial line, and by said terfritorial line. The 
eastern state shall be bounded by the last-mentioned direct line, the 
Ohio, Pennsylvania, and the said tenitoria! line; provided, however, 
and it i§ further understood and declared, that the boundaries of these 
three states shall be subject so far to be altered, that if congress shall here¬ 
after find it expedient, they shall have authority to form one or two 


ORDINANCE OF 1787 . 


193 


states in that part of the said territory which lies north of an east arvd 
west line drawn through the southerly bend or extreme of Lake Michi¬ 
gan : and whenever any of the said states shall have sixty thousand 
free inhabitants therein, such state shall be admitted by its delegates, 
into the Congress of the United States, on an equal footing with the 
original states, in all respects whatsoever; and shall be at liberty to 
forma permanent constitution and state government: Provided^ the 
constitution and government so to be formed, shall be republican, and 
in conformity to the principles contained in these articles: and so far 
as it can be consistent with the general interest of the confederacy, 
such admission shall be allowed at an earlier period, and when there 
may be a less number of free inhabitants in the state than sixty thousand. 

Art. VI. There shall be neither slavery nor involuntary servitude in 
the said territory, otherwise than in punishment of crimes whereof the 
party shall have been duly convicted: Provided^ always, that any 
person escaping into the same, from whom labor or service is lawfully 
claimed in any one of the original states, such fugitive may be lawfully ' 
reclaimed and conveyed to the person claiming his or her labor' or ser¬ 
vice as aforesaid, 

Beit ordained^ by the authority aforesaid, that the resolutions of the 
23d of April, 1784, relative to the subject of this ordinance, be, and the 
same are hereby reoealed and declared null and void. 

17 


194 


THE RATIFICATION OF 


CHAPTER III. 

ITIE RATIFICATION OF THE CONSTITUTION. 

§ 435. We have now seen what the Constitution is, 
and in connexion with that, what constructions have been 
put upon its various clauses, and what decisions have 
been had under it by the judicial authority. It is im¬ 
portant that we should now look at the mode in which 
it was ratified, and what opinions were declared by the 
ratifying power, as to what were the rights vested in 
the national government. 

§ 436. When the Convention had formed the Consti¬ 
tution, they by resolution^ directed it to be “ laid before 
the United States in Congress assembled,” and declared 
their opinion that it should afterward “be submitted to 
a convention of delegates, chosen in each state by the 
people thereof, under a recommendation of its legisla¬ 
ture, for iheir assent and ratification and that each 
convention assenting thereto, and ratifying it, should 
notify Congress thereof. 

§ 437. Accordingly, Congress having received the 
report of the convention, —^ tjjg report, 

resolutions, and letter accompanying them, be trans¬ 
mitted to the several legislatures, to be by them sub¬ 
mitted to a convention of delegates chosen in each state 
by the people thereof, in conformity to the resolve of 
the convention, &c. &c. 

§ 438. Under this resolution of Congress, the states 
called conventions of the people, and the Constitution 
being submitted to them, was ratified successively by all 
of them, and the Constitution became the supreme law 
of the land. 

* 4 Elliott’s Debates, 248. * Idem. 


THE CONSTITUTION. 


196 


ORDER AND MANNER OF RATIFICATION. 

§ 439. 1st. ^The first state which ratified the Con¬ 
stitution was Delaware, which did so on the 7th Decem¬ 
ber, 1787,—without condition or the recommendation 
of an amendment. 

§ 440. 2d. ^ The second was Pennsylvania, which, 
in like manner, without any declaration or recommenda¬ 
tion, ratified it on the 12th of December, 1787. « 

§441. 3d. The next was New-Jersey, which ratified 
on the 18th December, 1787, as is declared in their 
ratification, by the unanimous consent of all the mem¬ 
bers. 

§ 442. 4th. 3 The fourth was Connecticut, which 
likewise ratified without any declaration, on the 9th 
January, 1788. 

§ 443. 5th. ‘‘The next was Georgia, which ratified, 
without condition or resolution. 

§ 444. 6th. The sixth was Massachusetts. In the 
convention of this state, there was much opposition® to 
the Constitution, and at first a majority against it. In 
consequence of this, it was finally ratified with the 
declaration of the convention, that in their opinion, cer¬ 
tain amendments and alterations were necessary to 
remove the fears, and quiet the apprehensions of many 
of the good people of that commonwealth. ■ 

The amendments recommended were as follows, 
viz:® ^ 

1. That^ it be declared that all powers not expressly 
delegated by the Constitution should be reserved to the 
several states, to be by them exercised. 

2. That there should be one representative to each 

1 Elliott’s Deb. vol. 4, p. 207. ^ Idem. 202.* ^ Idem. 209. ^ Idem. 2-12. 

5 2 Pitkin’s Civ. Hist., 266. M Elliott’s Debates,211. 

7 Note.— Whenever resolutions or other proceedings are given in this 
work, except in the case of the Constitution, they are set forth sid)stan- 
tialhj. 


196 


THE RATIFICATION OP 


thirty thousand persons, until the whole number of 
persons amounted to two hundred. 

3. That Congress should not exercise the power of 
making regulations for electing members of Congress, 
unless the states neglected to make such regulations, or 
made them subversive of a free and equal represen¬ 
tation. 

i 4. That Congress do not lay direct taxes, but when 
the funds arising from impost and excise are insufficient, 
nor then till*they have first made a requisition on each 
of the states for their quota, and the states have neg 
lected or refused to pay their proportion. 

5. That Congress erect no company of merchants 
with exclusive advantages, 

6. That no personffie tried for a crime, or suffer an 
infamous punishment, or loss of life, except in the mili¬ 
tary or naval service, without indictment by a grand 
jury. 

7. The United States Judiciary shall have no juris¬ 
diction of causes between citizens of different states, 
unless the matter in dispute extend to ^3000, nor the 
judicial power extend to actions between citizens of 
different states when the matter is not of the value of 
$1600. 

§ 445. 8. In civil actions between citizens of differ¬ 
ent states, issues of fact at common law shall be tried 
by jury, if the parties request it. 

9. Congress shall not consent, any person hold¬ 
ing an office of profit or trust under the United States 
'shall receive any title or office from a king, prince, or 
foreign state. 

§ 446. With the recommendation of these amend¬ 
ments, Massachusetts, after great opposition,^ ratified the 
Constitution on the 7th of February, 1788. 

§ 447. It will be seen in the Constitution, that the 
sixth recommendation in relation to Indictments is im- 
1 4 Elliott’s Debates, 212. 


THE CONSTITUTION. 


197 


bodied in the fifth amendment ,to the Constitution, and 
that the eighth recommendation is included in the seventh 
amendment. With the exception of these two, none of 
the recommendations were ever adopted. 

§ 448. 7th. ^The seventh state to ratify the Consti¬ 
tution was Maryland. This was done without any col¬ 
lateral resolutions, on the 28th of April, 1788. 

§ 449. 8th. The next was the state of South Caro¬ 
lina, which ratified on the 23d of May, 1788. Accom¬ 
panying their recommendation also, were several reso¬ 
lutions, the substance of which is as follows; viz. 

1. The first resolution was the same as the third of 
Massachusetts, in relation to the power of Congress to 
regulate the elections of its members, 

2. The second was the same as the first of Massa¬ 
chusetts, in relation to the powers not expressly granted. 

3. The third was the same as the fourth of Massa¬ 
chusetts, in relation to direct taxes. 

4. The fourth was a verbal criticism on the third 
section of the sixth article. 

5. The fifth made it a standing instruction to the 
delegates from that state to endeavor to have these al¬ 
terations made. 

None of these proposed amendments were ever made. 

§ 450. 9th. 2The ninth state which ratified, and 
which made up the number which was necessary to put 
the Constitution in operation, was New-Hampshire j 
this took place on the 21st of June, 1788. In the con¬ 
vention of this state, as in Massachusetts, there was great 
opposition to the Constitution, and their ratification was 
accompanied with the following recommendations. 

1. The first is the same as those of Massachusetts 
and South Carolina, in relation to powers not expressly 
delegated. 

2. The second is the same as the second of Massa¬ 
chusetts. 

1 Elliott’s Debates, 213. _ 2 4 Idem, 214. 

17 ^ 


198 


THE RATIFICATION OF 


3. The third, fourth, fifth, sixth, seventh, 'eighth, 'and 
ninth alterations proposed are the same with the cor¬ 
responding ones, proposed by Massachusetts. In fact, 
as far as the tenth, the New-Hampshire propositions 
seem to have been a literal copy from those of Massa¬ 
chusetts. 

10. The tenth was, that no standing army should be 
kept in time of peace, without the consent of three- 
fourths of both branches of Congress, nor shall soldiers 
in time of peace be quartered upon private houses with¬ 
out the consent of owners. 

11. Congress shall make no laws touching religion, 
nor infringe the rights of conscience. 

12. Congress shall not disarm citizens unless such 
as have been in rebellion. 

The latter part of the tenth alteration proposed is 
embraced in the third amendment to the Constitution. 
The eleventh, is included in the first amendment to the 
Constitution. The twelfth is the second amendment. 

§451. 10th. The tenth state in the order of ratifica¬ 
tion was Virginia, which ratified on the 26lh June, 1788. 
In this state also there was much opposition, and their 
ratification was accompanied by a declaration of rights, 
in substance as follows; viz. 

That the people may resume the powers of govern¬ 
ment, when they are perverted and abused to their in¬ 
jury and oppression; that every power not granted re¬ 
mains with them and at their will; that no right can be 
cancelled, abridged, or restrained by Congress, the 
President, or any department or officer of the United 
States, except where the power is given by the Consti¬ 
tution for these purposes; and that the rights of con¬ 
science and of the press cannot be so restrained, modi¬ 
fied, or cancelled. 

This declaration contained the substance of many of 
the resolutions offered by other states; and we shall 
1 4 Elliott’s Debates, 215, 


THE CONSTITUTION. 199 

see, in the course of this chapter, the portion of them 
which was adopted. 

§ 452. 11th, The eleventh state adopting the Con¬ 
stitution was New-York. Their ratification was made on 
the 26th July, in the year 1788. It was accompanied 
by a long declaration of rights, and a series of proposed 
amendments. 

In addition to the amendments already proposed by 
other states, there were the following:— 

That Congress should not impose an excise on any 
article of the growth, production, or manufacture of the 
United State's. 

7'hat no person should be eligible as President, Vice- 
President, or member of Congress, who was not a nat¬ 
ural born citizen, or a citizen on the 4th of July, 1776, 
or held a commission under the United States during 
the war, and became citizens subsequently, and who 
shall be freeholders. 

That to borrow money, or declare war, two-thirds of 
the senators and representatives present must concur. 

That the privilege of Habeas Corpus shall not be 
suspendetl for a longer time than six months, or until 
twenty days after the meeting of the next Congress. 

That the right of exclusive jurisdiction over ten miles 
square shall not exempt its citizens from paying the 
same taxes that other citizens do, nor privilege them 
from arrest for crimes committed, or debts contracted 
without the district. 

That the right of exclusive jurisdiction over certain 
public places shall not authorize Congress to prevent 
the operation of the state laws in civil and criminal 
matters, except as to persons in the employ of the 
United States, nor as to them, in respect to crimes. 

That the compensation of members of Congress be 
fixed by standing’Maws, and no alteration operate for 
the benefit of members m.aking it. 

* 4 Elliott’s Debates, 216. 


200 


THE RATIFICATION OP 


That the Journals of Congress shall be published at 
least once a year, except such parts as" may require 
secrecy; that they shall keep their doors open; and 
that two members may require the yeas and nays. 

That no capitation tax shall be laid. 

That no person shall be senator more than six years 
out of twelve; that the legislatures may recall their 
senators and elect others. 

That no member of Congress shall, during the time 
for which he was elected, be appointed to any office 
under the United States. 

That the power of Congress to pass bankrupt laws 
should only extend to merchants and traders, and that 
the states have power to pass other insolvent laws. 

That no person be eligible as President a third time. 

That the executive shall not grant pardons for trea¬ 
son without the consent of Congress, but may reprieve 
them till heard by Congress. 

That the President, or person acting as such, shall 
not command the army in the field unless by desire of 
Congress. 

That all letters patent, commissions, writs, &,c., 
should run in the name of “the People of the United 
States,” and be tested in the name of the President of 
the United States, or the first judge of the court out of 
which process shall issue. 

That Congress should constitute no inferior tribunals 
with appellate power, except such as are necessary for 
admiralty and maritime jurisdiction, and in other cases 
where the jurisdiction is not original, causes shall be 
tried by the state courts, with a right of appeal to the 
Supreme Court. 

That the court for the trial of impeachments shall 
consist of the Senate, the judges of the Supreme 
Court, and the chief judge of the highest court in each 
state. 

That no judge of the Supreme Court shall hold any 


THE CONSTITUTION. 


'201 


Other office under the government of the United States, 
or any of them. 

That the militia shall not be compelled to serve out 
of the state for more than six weeks, without the con¬ 
sent of the legislature. 

None of these propositions were adopted, but taken 
in connexion with the amendments proposed by other 
states, they show what construction was, at the time, 
placed upon some of the most important clauses of the 
Constitution. 

§453. 12th. * The twelfth state which ratified the Con¬ 
stitution was North Carolina, on the 21st of November, 
1789. In this state, also, there was great opposition, 
and a resolution was passed, declaring that a bill of 
rights should be annexed to the Constitution, and sev¬ 
eral amendments adopted. 

§ 454. The ratification of New-Hampshire, the ninth 
in order, was received by Congress on the 2d of J uly, 
1788. They then appointed a committee to report an 
act to put the Constitution into operation. Under that 
act the Constitution went into operation on the 4th of 
March, 1789. It has been seen that North Carolina 
did not ratify till November, so that the first election of 
President was made by eleven states. 

§ 455. Rhode Island was not represented in the Con¬ 
vention, and did not ratify the Constitution till the 29th 
of May, 1790,^ more than a year after it had gone into 
practical operation. The ratification was accompanied 
by a Declaration of Rights, and the recommendation of 
many amendments. They recommended nearly all the 
alterations proposed by other states, and the following 
additional ones;— 

That the judicial power of the United States, in which 
a state is a party, shall not extend to criminal prosecu¬ 
tions, nor to authorize any suit, by any person, against 
a state. 

1 4 Elliott’s Debates, 221. * Idem. 225. 


202 


THE RATIFICATION OP 


That no amendment shall take eftect without the con¬ 
sent of eleven states. 

That no person shall be compelled to do military duty 
without voluntary enlistment. 

That no standing army be kept in time of peace. 

These alterations were not adopted, except the one 
in relation to suits by individuals against a state, which 
is imbodied in the eleventh amendment to the Constitu¬ 
tion. 

§ 456. The Constitution, after its formation, was 
addressed to the President of Congress, and accompa¬ 
nied by a letter from General Washington, President of 
the Convention,—from which the following extracts are 
taken. 

The letter shows, in a remarkable manner, in what 
light the Constitution was then viewed, and what were 
the objects of its formation. They were very different 
from the fanciful constructions which metaphysical poli¬ 
ticians have since been disposed to put upon it. 

§ 457. ^It is obviously impracticable in the federal 
government of these states, to secure all rights of inde¬ 
pendent sovereignty to each, and yet provide for the in¬ 
terests and safety of all. Individuals entering into 
society must give up a share of liberty to preserve the 
rest. The magnitude of the sacrifee must depend, as 
well on situation and circumstance as on the object 
to he obtained. It is at all tunes dificult to draw with 
precision the line between those rights which must he 
surrendered and those which may be reserved; and, on 
the present occasion, this difficulty was increased by a 
difference among the several states as to their situation, 
extent, habits, and particular interests. 

In all our deliberations on this subject, we hept steadily 
in our view that tvhich appears to us the greatest interest 
of every true American, the consolidation of the Union, 
in which is involved our prosperity, felicity, safety ,— 
I Elliott’s Debates, 249. 


THE CONSTITUTION^ 


203 


perhaps our national existence. This important considera¬ 
tion, seriously and deeply impressed upon our minds, led 
each state in the Convention to he less rigid on points 
of inferior magnitude than might have been otherwise ex¬ 
pected; and thus, the Constitution, which we now present, 
, is the result of a spirit of amity, and of that mutual de¬ 
ference- and concession, which the jicculiarily of our polit¬ 
ical situation rendered indispensable. 

§ 458. The spirit in which our Constituton was form¬ 
ed, and the great object to be obtained by it, were very 
different from the spirit and objects entertained by some 
modern politicians. Then the consolidation of our union 
was the great end, to which all other objects were pro¬ 
nounced, by Washington and his fellow-statesmen, of m- 
ferior magnitude. Now, consolidation, whether of the 
union, of law, or of government, is the great object of 
fear and danger to a class of men, who either think or 
assert themselves to be the purest of patriots! 

§ 459. At the first session of the first Congress, the 
Senate and House of Representatives, two-thirds con¬ 
curring, recommended to the states the adoption of 
twelve amendments to the Constitution, comprising 
chiefly those parts of the recommendations of the states 
which we have already noticed as having been adopted. 
Ten of these amendments were adopted^ by three- 
fourths of the legislatures of the states, and became a 
part of the Constitution. Subsequently, three other 
amendments w'ere added. 

§ 460. On the 10th of January, 1791, Vermont, the 
first of the new states, joined the union, and gave its 
assent to the Constitution. Since then the Constitution 
has been adopted, assented to, and ratified by ten new 
states, who have become integral parts of the great 
whole, and, as we shall hereafter see, indissolubly con¬ 
nected by the union. In this manner the Constitution 
was ratified, and received its binding force from the 
> 4 Elliott’s Debates, 227. 


204 the ratification, &c. 

people in the several states, not from the state govern 
ments. 

§ 461. The language of the ratifications is remarka¬ 
bly uniform, and remarkably, explicit, as to the source 
whence the Constitution receives its authority and force. 

All the ratifications commence with. We, the delegates 
of the 2 )eople thereof; and all terminate by making the 
ratifications in the name of their constituents, the 
people. 

It is. plain throughout, that some other binding force 
was thought necessary than mere state authorities. 
The people, —common constituents, it is true, of both 
state and national governments,—were everywhere 
summoned, in their original and sovereign capacity, to 
give authority to that union and Constitution, which was 
not a compact among state governments, but among the 
people, who are equally sovereign over both national 
and state governments, and upon whom the Constitution 
acts directly and personally. 

§ 462. Among the constructions given to the Consti¬ 
tution at the time, in the declarations of the states rati¬ 
fying it, may be remarked the following fact,—that 
Massachusetts explicitly declared, that the rights not ex¬ 
pressly granted were reserved to the states, —and Vir¬ 
ginia, on the other hand, as explicitly held, that all 
powers of the Constitution were derived from the people 
of the United States, and those not granted were re¬ 
served to them. These states have now exactly re¬ 
versed their positions, and exhibit a new evidence of 
the instability of human opinion. Indeed, to those who 
love truth more than argument, all the metaphysical 
subtilties of the profoundest philosopher would weigh 
little, in construing the Constitution, against such facts 
as the Letter of Washington, the ratifications of the 
states, the debates of the Convention, and the declared 
object of all the statesmen who participated in the acts 
and doings of that day. 


STATE G0VERN3IENTS. 


<} 


205 


CHAPTER IV. 

THEORY OF THE STATE GOVERNMENTS. 

§ 463. By article 4th, Section 4th, of the United 
States Constitution, the United States guaranties to 
every state in the Union a republican form of government. 
Most of the colonies had charters previous to the Revo¬ 
lution, especially the New-England States, which con¬ 
ceded to them all the rights of self-government; but 
after the Declaration of Independence, and at the close 
of the war, nearly all of them formed Constitutions for 
themselves. Rhode Island alone still continues un¬ 
der her ancient charter. The new states formed 
their Constitutions as they were admitted into the 
Union. 

§ 464. These Constitutions are all formed upon the 
same principles with each other, and with the Constitu¬ 
tion of the United States. They all observe the same 
division of the government into the three parts of Exe¬ 
cutive, Legislative, and Judicial. They all adopt the 
representative principle, and are all republican. One- 
half of them are accompanied with declarations of right, 
—a measure of superabundant caution; for, the evils 
which they are generally intended to operate against 
could not take place if the State Constitutions had no 
existence; as the Constitution of the United States ef¬ 
fectually prohibits them. 

§ 465. The order of time in which the State Constitu¬ 
tions were formed, is as follows, viz: 

1. * Rhode Island has no Constitution, but is govern¬ 
ed by a charter from Charles II., which concedes to the 
governor and company all the powers executive, legis- 
* American Constitutions. 

18 


206 


STATE GOVERNMENTS. 


lative, and judicial. The governor and legislature are 
chosen by the people, and they appoint the officers. 

2- The first Constitution formed among the states 
was that of New-Jei‘sey, which was ratified by the Pro¬ 
vincial Congress, July 2d, 1776- As this was before 
the Declaration of Independence, it was provided that 
if a reconciliation took place with Great Britain, then 
that instrument was to be null and void. 

3. The next Constitution was that of Maryland, 
which was formed on the 14th of August, 1776- 

4. The Constitution of North Carolina was formed 
December 18 th, 1776- 

6. Massachusetts assumed her form of government 
March 2d, 1780. 

6. The next was South Carolina, which adopted her 
Constitution on the 3d of June, 1790. 

7. The next Pennsylvania, on the 2d of September, 
1790. 

8. The next New-Hampshire, in February, 1792. 

9. Vermont, July 9th, 1793. 

10. Tennessee, February 6th, 1796. 

11. Georgia, May 30th, 1798. 

12. Kentucky, 17th of August, 1799. 

13. Ohio, November 1st, 1802. 

14. Louisiana, January 28th, 1812. 

15. Indiana, June 29th, 1816. 

16. Mississippi, 15th of August, 1817. 

17. Illinois, on the 26th of August, 1818. 

18. Connecticut, on the 15th September, 1818. 
Connecticut had until this time lived, like Rhode Island, 
under the charter of Charles II. 

19. Alabama, on the 2d of August, 1819. 

20. Maine, which had previously constituted a part 
of Massachusetts, adopted her Constitution on October 
29th, 1819. 

21. Missouri, on the 19th of July, 1820. 

22. New-York had a Constitution previously, but her 


STATE GOVERNMENTS. 207 

present one was formed and adopted 10th of Novem¬ 
ber, 1821. 

23. Virginia also had a Constitution ever since the 
Revolution; but she formed a new one, 14th Jan. 1830. 

24. Delaware adopted her present Constitution, 2d 
December, 1831. 

§ 466. As all these are similar to each other, and 
nearly in form the same with the Constitution of the 
United States, it will be unnecessary for the purpose of 
instruction, to consider more than one of them^ and then 
point out the differences between that and the others. 
For this purpose we shall select the Constitution of 
New-York, which will be found interesting, on account 
of its being formed at so late a period, the peculiar tal¬ 
ent displayed in the convention which formed it, and the 
elaborate structure of its judiciary. 

CONSTITUTION OF NEW-YORK. 

§ 467. In considering this instrument, we shall 
merely give an outline of its principles, without enter¬ 
ing into details. 

§ 468. By the Constitution of New-York, power is 
vested in three branches,—the Legislative, the Execu¬ 
tive, and the Judicial. 

By the 1st Article of the Constitution, legislative 
power is vested in a Senate and an Assembly. The 
Senate consists of thirty-two members, who are freehold¬ 
ers, and chosen for four years; the Assembly, of 128 
members, annually elected. Senators are chosen by 
districts, the state being divided into eight; Representa¬ 
tives by counties. A majority of each house constitutes 
a quorum. Each house determines the rules of its pro¬ 
ceedings,—the qualifications of its members,—chooses 
its own officers, except that the lieutenant-governor, 
when present, is President of the Senate,—each house 
keeps a journal of its proceedings, and publishes the 
same, except when secrecy is required. Bills may 


208 


STATE GOVERNMENTS. 


originate in either house. Every bill which passes the 
two houses must be presented to the governor for his sig¬ 
nature; if he object, he may return it, with his objections; 
if two-thirds of both houses re-enact it, it becomes a law 
without the governor’s consent; if a bill is not returned 
within ten days, Sundays excepted, after it shall have 
been presented, it becomes a law. Officers elected 
during good behavior may be removed by joint resolu¬ 
tion of the two houses, two thirds of the Assembly con¬ 
curring, and a majority of the Senate. The Legisla¬ 
ture meets every year. 

§ 469. By Article 2d, every male citizen of the age 
of twenty-one years, who was a resident of the state a 
year previous to any election, and for the last six months 
a resident of the town or county where he may offer his 
vote, and shall have within the year next preceding the 
election paid a tax to the state, or county, assessed upon 
real or personal property, or shall by law be exempt 
from taxation, or shall have performed militia duty prop¬ 
erly equipped, or shall be exempt by being a fireman; 
also every male citizen, who shall have been for three 
years next preceding such elections an inhabitant of the '' 
state, and the last year a resident of the town or county 
where he offers his vote, and shall for the last year have 
been assessed to work on the public highway, and shall 
have performed the labor or paid an equivalent there¬ 
for, shall be entitled to vote in the town or ward where 
he actually resides, and not elsewhere, for all officers 
that now are, or hereafter may be elective by the peo¬ 
ple; no man of color can vote unless he has been three 
years a citizen, and for one year shall have been seized 
and possessed of a freehold of the value of $250 over 
all incumbrances, and shall have paid a tax on it. And 
no person of color is subject to direct taxation without 
he is so possessed. Since the adoption of the Consti¬ 
tution the right of suffrage has been extended by an 


STATE GOVERNMENTS. 209 

amendment, and is now nearly universal for citizens 
over twenty-one years of age. 

Persons may be excluded who have been convicted 
of infamous crimes. 

All elections are by ballot. 

§ 470. By Article 3d, the executive power is vested 
in a governor, elected for two years; a lieutenant-gov¬ 
ernor is also elected for the same time. 

The qualifications for governor are,—to be a firee-r 
holder, 30 years of age, and five years a resident of the 
state, unless absent on public business of the United 
States. Governor and lieutenant-governor are elected 
at the same time and place as members of the Legisla¬ 
ture,—are elected by the highest number of votes:—if 
receiving an equal number, by the Legislature. 

The governor is commander-in-chief of the militia 
and admiral of the navy;—convenes the Legislature on 
extraordinary occasions; communicates to the Legisla¬ 
ture the condition of the state, and recommends such 
things as he thinks proper; transacts all necessary busi¬ 
ness with the ofiicers of government, expedites measures 
resolved upon by the Legislature, and sees the laws faith¬ 
fully executed. He has power to grant reprieves and 
pardons, except for treason and cases of impeachment. 
In case of the death, removal, impeachment, &c. of the 
governor, the lieutenant-governor shall perform his duties. 

The lieutenant-governor is President of the Senate, 
and has a casting vote therein; in case of his perform¬ 
ing the duties of governor, by resignation, death, &c. 
the President of the Senate for the time being is lieu¬ 
tenant-governor; and in case of vacancy of both gover¬ 
nor and lieutenant-governor, the President of the Sen¬ 
ate acts as governor. 

§ 471. Article 4th, contains the apjwinting power. 
The governor nominates, and with the consent of the 
Senate, appoints the following ofiicers, viz.: all major- 
generals, brigade inspectors, and chiefs of the staff, 
18 =" 


210 


STATE GOVERIvTttENTS. 


among the militia, except the commissary-general and 
adjutant-general, of whom the latter is appointed by the 
-governor alone; all judicial officers except justices of 
the peace; masters and examiners in Chancery. * 

The Legulature nominates, and on joint ballot elects 
the following officers, viz.: The secretary of state, 
comptroller, treasurer, attorney-general, surveyor-gen¬ 
eral, and commissary-general. 

Captains and subalterns of militia are chosen by the pri¬ 
vates and non-commissioned officers. Field officers of 
regiments and battalions by the respective officers of their 
regiments. Brigadiers by the officers of their brigade. 

Clerks of courts, except county clerks, are chosen by 
their respective courts. 

Mayors of cities are chosen annually by the common 
councils, except in the city of New-York, where, by an 
amendment of the Constitution, the mayor is chosen by 
the people. 

Registers and assistant-registers are appointed by 
the chancellor. 

Clerk and other officers for the Court of Oyer and 
Terminer in New-York, are appointed by the Court of 
General Sessions. 

Justices and assistant-justices in New-York are ap¬ 
pointed by the common council. 

All other officers are elected by the people. ^ 

§ 472. Article 5th concerns the judiciary. There 
is a court of Chancery, over which presides the chancel¬ 
lor: a Supre7iie Court, consisting of a chief justice and 
two justices, any two of whom may hold a court: a 
Circuit Court, consisting of a single judge for each cir¬ 
cuit, with the powers of a supreme judge at chambers, 
and with criminal jurisdiction, and such equity jurisdic¬ 
tion as the Legislature may confer, subject to the appel¬ 
late jurisdiction of the chancellor: a County Court, con¬ 
sisting of a chief judge and assistants; recorders in 
cities having judicial functions. 


STATE GOVERNMENTS. 


211 


The chancellor and justices of the Supreme Court 
can only hold their offices till they are sixty years of 
age. 

The court for the final correction of errors, and the 
trial of impeachments, consists of the President of the 
Senate, the senators, the chancellor, and the justices of 
the Supreme Court, or a majority of them. The chan¬ 
cellor and the justices, when a writ of error is brought 
for decisions by them, inform the court of the reasons 
thereof. 

§ 473. By Article 6th, members of the Legislature, 
and all officers except such inferior officers as may be 
exempted by law, are required to take an oath to sup¬ 
port the Constitution of the United States, and of the 
State of New-York:—and no other oath or test is requi¬ 
red as a qualification for any office. 

§ 474. Article 7th contains many miscellaneous pro¬ 
visions, most of them confirmatory of rights already 
established by the Constitution of the United States, 
such as the trial by jury, the free enjoyment of religious 
worship, the privilege of the writ of Habeas Corpus; 
presentment and indictment in criminal cases by a grand 
jury; and the liberty of the press; it is also provided 
that no minister of the Gospel shall be eligible to any 
civil or military office; also, that the concurrence of 
two-thirds of each branch of the Legislature is neces¬ 
sary to the appropriation of money to local or private 
purposes, and to create corporate bodies. 

The Common Law in existence in 1775, is adopted 
and continued in force. 

§ 475. Article 8th provides for the amendments. 
Article 9th appoints the time of its going into operation, 
and the mode by which the new Constitution shall be 
carried into effect.* 

§ 476. These are, in substance, the leading provisions 
of the Constitution of New-York, and are, as will readily 
* American Constitutions, 


212 


STATE GOVERNMENTS. 


be perceived, very analogous to those of the Constitution 
of the United States. Indeed the latter has in a great 
measure been the model for all the state constitutions 
formed since its own adoption; and that again was 
formed on the best parts of the English constitution, 
modified and amended by the circumstance of many 
states united into one, the more liberal ideas of religious 
freedom, and personal rights, which had grown up and 
for many generations existed among the Colonial Insti¬ 
tutions. 

§ 477. By a comparison of this Constitution with that 
of the United States it will be seen; 

1st. That like that of the United States, power 'is 
divided into the three departments of legislative, execu¬ 
tive, and judicial. 

§ 478. 2d. That the legislative department is like¬ 
wise divided into two branches, —the Senate and the 
House of Assembly;—the former elected by larger 
bodies, and for a longer time; the latter more popular 
in its character. 

§ 479. 3d. That like the Congress, they decide ^on 
the qualifications of their own members, and determine 
the rules of their own proceeding. 

§ 480. 4th. Every bill, like the laws of Congress, 
requires the signature of the executive chief to be¬ 
come a law, and he may put his negative upon it, 
and unless subsequently passed by two thirds, may 
reject it. 

§ 481. 5th. The executive, like the President, is 
chief of such military and naval force as the state may 
employ. He also has the nomination, and in conjunc¬ 
tion with the Senate, the appointment of many impor¬ 
tant officers. Like the President, he makes recom¬ 
mendations to the legislative body, and takes care that 
the laws be executed. Like him, he may be impeach¬ 
ed, and removed. 

§ 482. 6th, The judiciary, in respect to the Supreme 


STATE G0VERN3IENTS. 213 

Court and Circuit Courts, arc alike, and so also are 
many other miscellaneous provisions. 

§ 483. But, while there is this similitude in thcybrm^ 
of the constitutions, there is a wide difference in their 
powers and objects. The Constitution of the United 
States being national, regards national objects, and is 
vested with poioers chief,y external, —while the state 
constitutions being subordinate and local, act almost 
wholly upon municipal and internal affairs. 

§ 484. What then is the object and extent of State 
Legislation? The Constitution of the United States 
defines the powers and action of the state governments, 
by the joint action of two principles contained within 
itself. 1st. By the delegation of certain rights and 
powers to the United States government, upon which 
the states cannot trench; and 2dly, By the express pro¬ 
hibition of certain other powers to the states. This is 
the limit imposed by the government of the whole upon 
the government of the parts. The residuary poicer, 
whatever it may be, is expressly Reserved to the states, 
or to the people. The powers retained by the people arc 
those great natural rights which they have granted to 
neither state nor national governments; among these 
are the rights of personal liberty and private worship, 
and the great right of reforming and amending the 
government,- or abrogating it entirely when they find it 
oppressive. This is i\\e f undamental right of revolution, 
and should never be confounded with rights arising 
under the government. The former is the original right 
of the people to constitute their own government, and 
of course to overturn it: the latter is subordinate to 
that government, and cannot be exercised in opposition 
to it. 

§,485. The powers of the state governments, then, 
are all that great body of authority which the Constitu¬ 
tion of the United States does not directly or indirectly 
* 10th Amendment to the Constitution of the United States. 


214 


STATE GOVEKV'MENTS. 


'prohibit to the states, and the people have not themselves 
retained. 

§ 406. Without entering into details, we may briefly 
notice some of the most important powers possessed by 
the states. 

1st. The Constitution of the United States, while 
directing that a representative body should be chosen, 
left the regulation of the elective franchise to the states; 
for it ‘directs that the “electors” shall have the same 
qualifications as electors for the most numerous branch 
of the Legislatures. Each state then, in regulating the 
elective franchise for itself, also regulates that of the 
government of the Union, and may make it as enlarged 
or as restricted as it pleases. 

§ 487. 2d. Another power possessed by the states,^ 
is that of partaking in the formation of the national Se¬ 
nate. Though this would seem to place the existence 
of the Senate in the power of the states, yet such is not 
the fact; for the ^Constitution in another provision gives 
Congress the power to malce and alter regulations a^ to 
times and manner (^choosing senators; if, then, Congress 
make such regulations, and the states do not choose their 
senators at.that time and in that mode, they will act un¬ 
constitutionally, and place themselves in the wrong. 

§ 488. 3d. Another power possessed by the states,'* is 
contained in the mode of choosing the President. The 
states appoint in such manner as the legislatures direct 
the electors; but in this case, as in that of senators, the 
power to act or not act is not left with the states. By 
another clause,® Congress appoints the time of choosing 
electors, and the day of giving their votes. 

§ 489. 4th. The next and greatest authority vested 
in the states, is the enactment of the whole body of local 
and municipal laws, and the enforcement of them by a 

1 Art. 1, Sect. 2, United States Constitution. 2 Idem. Sect. 3. 

3 Idem. Sect. 4. ^ Art 2, Sect. 2, Constitution United States. 

* Idem. Sect. 4. 


STATE GOVERNME^’TS. 


215 


proper organization of judicial courts. The Constitu¬ 
tion of the United States has vested in the national gov¬ 
ernment all the powers which are supreme and na¬ 
tional,—and all the powers necessary and proper to 
carry these into effect; but among these enumerated 
powers, and among those necessary to carry them into 
effect, are not found any of the municipal and local 
laws, which concern the rights of person and property; 
hence these are among the powers of the states, and 
they constitute the large mass of objects upon which 
the local legislatures occupy themselves. 

This class of laws are those which most intimately 
concern the happiness and prosperity of the people. 
The citizen can well understand this when he reflects 
that an act of incorporation by the Legislature, or the 
location of a canal-near his farm, may double his pro¬ 
perty, or a series of unwise enactments destroy the 
peace of society, or paralyze its industry, when the dis¬ 
tant war, upon which the nation is engaged, is unfelt 
and scarcely known. 

§ 490. The laws which result from the authority of 
state legislatures may be divided into four classes. 
1st. Those which concern private property and rights: 
This is composed of the body of the Common Law, and 
such acts of the Legislature as either confirm, alter, or 
abrogate it, with such other enactments as add or sub¬ 
stitute new provisions. Thus the Common Law directs 
that the lands of the ancestor shall descend to the heirs, 
in a certain order. The statute of the Legislature, that 
certain alterations shall take place in this mode of de¬ 
scent. The Common Law and the statutory alteration 
then constitute the law of descent, and to regulate and 
alter it is one of the powers of the states. 

§ 491. 2d. Another class of laws, upon which the 
state legislatures act, and which occupies much of their 
time, are those relating to corporate and public bodies; 
for example, laws incorporating turnpike, bridge, and 


216 


STATE GOVERNMENTS. 


Stock companies,—chartering cities, banks, and charita¬ 
ble and literary institutions. 

§ 492. 3d. A third class of subjects upon which the 
legislatures of the states act, is public property, public 
works, and public institutions; of this sort are public 
buildings, lands, &c., state canals, rail-roads, and im¬ 
provements,—the provision for common schools, benevo¬ 
lent institutions, and whatever else is of a public and 
general nature. 

§ 493. 4th. Another subject of legislative action is 
the punishment of crimes. The mode of conviction, the 
nature of the crime, the mode of punishment, and the 
support of criminals, all come within the jurisdiction 
of the states, except those crimes committed against 
the United States, and those committed on the high 
seas. 

§ 494. 5th. These several classes constitute the 
mass of the municipal and local legislation, with which 
the states are charged. But there are still other powers 
committed to their care. Of these, one of them is the 
power of officering the militia, and governing them 
when not called into service. Here it must be observed, 
however, that Congress, by the Constitution, have the 
power of organizing, arming, and disciplining the militia; 
and, when called into actual service, the President or the 
United States officers command them; hence, when 
Congress choose to exercise this poM'cr, the whole 
system of State Militia Laws will be abrogated. 

§ 495. 6th. Another power vested in the states is 
their co-operation in the amendment of the Constitution. 
Three-fourths of the states must assent to every amend¬ 
ment. 

§ 496. Having considered the constitution of the state 
of New-York separately, and the general powers vested 
in all the states, it is only necessary farther to see in 
what respects, if any, the constitutions of the other 
states differ from that of New-York. 


STATE GOVERNMENTS. 217 

§ 497 . In all the great divisions of the constitutions, 
the states all agree; Thus: 

1 . The government is in all of them expressly divided 
into the three divisions, Legislative, Executive, and Ju¬ 
dicial. 

2. The Legislative department is in all of them di¬ 
vided into two branches ,—the Senate and the Assembly, 
except only Vermont,—in which, however, there is an 
executive council, occupying a middle station between 
the executive and the legislative. 

3 . The executive is in every state the same, viz. a . 
governor. In some states, as in Vermont, New-Hamp- 
shire, and Maryland, the executive power is divided 
between the governor and a council. In these cases, 
the council share with him chiefly in the appointing 
pow'er; but in every state the chief magistrate is the 
governor. 

4 . The states all agree in the leading feature of the 
judiciary; they all have a Supreme Court, with inferior 
courts of Common Law, from which lies an appeal to 
the Supreme Court. In respect to Chancery, Probate, 
and Criminal Courts, they differ. 

§ 498. In considering the differences between the 
state constitutions,—the first and greatest is in respect 
to the right of suffrage. Here, we have before observ¬ 
ed, the states have a controlling influence over the na¬ 
tional representatives; for, by restricting the qualifica¬ 
tions of electors, they may make the'Congress entirely 
aristoeratie. Such, however, is not the tendency of our 
institutions; all the amendments in the state consti¬ 
tutions, made since the Revolution, have enlarged the 
right of suffrage, so that, in most of the states, it is sub- 
stantudly universal. Still there are great differences 
in this respect between some of the old and the new 
constitutions. ^ 

§ 499, 1. In the State of New-Hampshire, the right 
of suffrage is vested in “every male inhabitant of 21 
19 


218 


STATE GOVERNMENTS. 


years of age, except paupers, and persons excused from 
paying taxes by their own request.” ’ This is the near¬ 
est universal suffrage granted by any state in the Union. 
In fact, it is so to all whites of age. 

In Maine, the right of suffrage is the same, except 
the addition of three months’ residence. 

3 . In Illinois, the qualification is six months’ re¬ 
sidence in the state. 

In Tennessee, six months’ residence in any county. 

4 . In the states of Indiana, Vermont, and North 
Carolina, the qualification is a year’s residence m the 
state ,—except that in Vermont it is required the voter 
should be of quiet and peaceable behavior; and in 
North-Carolina, a higher qualification is required for 

^the Senate. 

5 . Georgia, Alabama, and Missouri require one year’s 
residence in the state, and three months within the 
county. 

6 . In Rhode Island, the charter gives the right of 
suffrage simply to \\iQ freemen. 

7 . In Connecticut, the qualification is six months’ 
residence, and militia duty, or exemption from it, or a 
state tax and moral character. 

8 . New-Jersey,—one year’s residence and state tax. 

9. Maryland, Massachusetts, New-York, and Missis 
sippi require one year’s residence in the state, and six 
months within the county or town. In Massachusetts, 
it is also required to have paid a tax, or been exempt 
by law. 

10 . Ohio and Louisiana require one year’s residence 
and a tax; in Louisiana the tax must have been paid 
within six months. 

11 . Pennsylvania, Delaware, and South-Carolina 
require two years’ residence and a state tax. 

12. Kentucky requires a residence within the state 
of two years, and within the county of one. 

13. Virginia requires, 1st, di, freehold the value of 


STATK GOVKRNMENTS. 


219 


$25f or an interest in one equivalent to it; or, 2d, a 
reversionary interest of $50 in value; or 3d, a lease¬ 
hold estate of the annual value of $200, or to have been 
a householder for twelve months, and to have been as¬ 
sessed, and paid a state tax. 

§ 500. In most of the states, the qualifications are so 
low that the right of suffrage, in reality, is universal 
among all whites above twenty-one years of age. In 
some of the slates, as New-York, free colored persons 
vote. 

§ 501. The next point upon which there are differ¬ 
ences among the states is in relation to the judiciary. 
We have already seen that, in the great feature of a 
Supreme Court and inferior courts, they all agree. In 
respect to other courts, there is a variance. 

§ 502- Thus, the states of New-York, New-Jersey, 
Delaware, Maryland, Virginia, South-Carolina, and 
Mississippi have Courts of Chancery: in all the rest. 
Chancery powers are vested in the courts of Common 
Law. 

§ 503. Many of the states, as Massachusetts and 
Connecticut, have Courts of Prohate; in others, as New- 
York, the probate duties are performed by the Surrogate, 
an officer appointed for that purpose ; in others, as 
Ohio, the duties of a Court of Probate are attached to 
the Court of Common Pleas. In Louisiana, the parish 
judge performs these duties. 

§ 504. These are the chief points upon which the 
state governments differ. In all, however, there is the 
same form, and the same principles lie at the founda¬ 
tions. 

§ 505. In the institutions and codes of law adopted 
and enacted in the different states for the government 
of society, there is some difference. In most of the 
states, especially the old ones, the Common Law, as ex¬ 
isting prior to the Revolution, has been entirely adopted. 
In those states, the courts have common law jurisdiction, 


f 


220 STATE GOVERNMENTS. 

as well of crimes and offences as in civil suits. There 
the Common Law, the statutes of the Legislature, such 
particular customs as are acknowledged by the courts, 
and the laws of the United States,.make up the body of 
laws in force. In other states, as Ohio and several of 
the new states, the Common Law is adopted only, so 
far as is consistent with the usages and condition of the 
people; how far it is so, is adjudged by the courts. 
Here criminal offences at Common Law do not exist. 
There are no crimes or misdemeanors but such as are 
found on the statute book. In Connecticut or New- 
York, a person may be indicted for keeping a nuisance, 
and many similar misdemeanors, at Common Law, while 
in Ohio he cannot be, because the statute has not made 
such acts criminal. 

§ 506. In Louisiana, the Civil Law prevails; the 
Common Law is not adopted there. 

There are some other minor differences in the gov¬ 
ernment and laws of the several states, but these are 
the chief. 


CHAPTER V. 

THE NATURE, PRINCIPLES, AND RELATIONS OF THE 
GENERAL AND STATE GOVERNMENTS. 

§ 507. We have already examined, step by step, the 
provisions of the Constitution, and the constructions 
which have been placed upon doubtful points by the 
tribunals and constituted authorities of the country; but 
every government is of a certain nature, dependent upon 
the forms of its administration; and every government 
has certain principles inherent in itself, and upon which 
it subsists; in our government, is superadded to these, 



STATE GOVERNMENTS. 


221 


the peculiar relations of the federative system. To un¬ 
derstand these properly, we must go over clearly, and 
separately the fundamental propositions upon which the 
government depends. In doing this, we shall endeavor 
to establish them both by the Constitution itself, and the 
fixed principles of political law. 

§ 508. Proposition 1st. Tlie Government of the Uni¬ 
ted States is a Republic. 

By our seventh definition, a republic is that form of 
government in which the whole people^ or only a part of 
the people, hold sovereign power, and by the preamble 
to the Constitution, we see that the government of the 
United States was formed by “we the people;” by 
Art. 1, Sect. 1, of the Constitution, we find that all 
legislative power is vested in a Congress; and by Sect. 
2d, that Congress is chosen by the people; hence it 
appears from the Constitution that the jyeople of the 
United States hold sovereign power; the government 
is therefore a republic. 

§ 509. Proposition 2d. The Government of the Uni¬ 
ted States is a Federative Republic. For we find in 
every article of the Constitution the recognition of 
states; by Article 1st, Sect. 2d, these states are repre¬ 
sented in Congress in proportion to their respective num¬ 
bers; by Sect. 3d, that these states have an equal rep¬ 
resentation in the Senate; by Art. 4, Sect. 2d, that 
these states have citizens; by Sept, 3d, that new states 
may be admitted into the Union; by Sect. 4, that the 
United States guarantee to these states a republican 
government; hence the United States is a Federative 
Republic, composed of states. 

§ 510. Proposition 3d. The Government of the Uni¬ 
ted States is a Democratic Federate Republic. 

By Definition 8th, a democracy is where the sovereign 
power is in the hands of the whole jfeople. By Art. 1, 
Sect. 1, of the Constitution, the legislative power is 
vested in a Congress, composed of a Senate and House 
19 ^ 


222 


STATE GOVERNMENTS. 


of Representatives; by Sect. 2d, the representatives are 
chosen by the people, and the electors have the same 
qualifications as are necessary for the most numerous 
branch of the state legislatures; by Sect. 3d, the Senate 
is chosen by the state legislatures; and by Art. 2d, 
Sect. 1, the executive is chosen by electors appointed 
in such manner as the state legislatures may direct; 
hence, both legislative and executive branches of the 
government are chosen by the people, and the electors 
have the qualifications necessary for electors of the most 
numerous branch of the state legislatures; by reference 
to the state constitutions, we find, that the electors for 
the most numerous branch of the state legislature are 
substantially the whole body of the people; hence, the 
government of the United States is a democracy, and as 
it is, by former propositions, a federative republic, it is 
a democratic federative republic. ^ 

§511. Proposition 4th. The Democracy of the Uni¬ 
ted States is a Representative Democracy. 

By Art. 1, Sect. 2d, the representatives are chosen, 
&c. By Sect. 3d, the Senate is chosen by the legisla¬ 
ture; and, by reference to the state constitutions it will 
be seen, the legislatures are chosen by the people; by 
Art. 2d, Sect. 1st, the executive is chosen by electors, 
appointed in such manner as the legislature may direct. 
By Art. 2d, Sect. 2d, the judiciary is appointed by the 
President and Senate; hence all the branches of the 
government are directly or indirectly chosen by the 
people; and hence the government is a representative 
democracy. 

§ 512. Proposition 5th. The foundation of the gov¬ 
ernment is the consent of the people. 

In the Declaration of Independence, it is laid down 
that governments derive their just powers from the con¬ 
sent of the governed, and the preamble to the Constitu¬ 
tion asserts that it was formed by ^‘we the people.” 
The ratifications of all the states commence with “We 


STATE GOVERNMENTS. 


223 


the delegates of the people;” hence the Constitution is, 
as it purports to be, founded only on the consent of the 
people. 

§513. Proposition 6th. The sanction of the govern¬ 
ment is responsibility to the people. 

By Art. 1, Sect. 2d, of the Constitution, the repre¬ 
sentatives are chosen every second year; hence they are, 
at the end of that time, directly amenable to the people ; 
in addition to which, each individual member is liable to 
expulsion by the w^hole; by Art. 2d, Sect. 1st, the execu¬ 
tive is chosen every four years, and is therefore likewise 
responsible to the people at the end of that time; by 
Art. 1, Sect. 3, hp may be impeached, and by the votes 
of two-thirds of the Senate, removed from office for 
treason, bribery, and other high crimes and misdemean¬ 
ors. He is, therefore, both directly and indirectly 
responsible to the people. By Art. 2d, Sect. 2d, the 
President, in conjunction with the Senate, has the power 
of appointing ambassadors, judges, and all other superior 
officers; and by the declaration of Congress, and the 
practical construction of the Constitution,* he has also 
the powerof removing them; these officers, consequently, 
are all of them directly responsible to the President, and 
by Art. 1st, Sect. 2d, they may also be impeached; they 
are, therefore, responsible to the people through the 
President, and likewise by impeachment. The judicia¬ 
ry is the only part of the government not directly res¬ 
ponsible to the President; but they are indirectly; for, 
by Art. 2d, Sect. 2d, they are appointed by the Presi¬ 
dent, who is himself responsible, and by Art. 1st, Sect. 
2d, they may be impeached by the representatives of 
the people, who hold the sole power of impeachment; all 
branches of the government, therefore, and all its offi¬ 
cers, are made responsible to the people; hence, the 
sanction of the government is responsibility to the 
people. 


\ Chapter 2, Section 312. 


224 


STATE G0VERN3IENTS. 


§514. Proposition 7th. The principle of the govern¬ 
ment Is the virtue of the people. 

This follows from several considerations: in a des¬ 
potism or monarchy, he who executes the laws also 
makes them; but in a popular government, he who ex¬ 
ecutes the laws is also subject to them. The monarch, 
then, who by bad counsel or negligence allows the laws 
to go unexecuted, may easily repair the evil by chang¬ 
ing his counsellors, or correcting his negligence. But 
when, in a popular government,' the laws cease to be ex¬ 
ecuted, as this can happen only from corruption, the state 
is already lost. Thus, when after the death of Charles 
I. the English attempted to establish a republic, they 
could not, because those who took part in public affairs 
had no virtue, and one party was continually opposed 
and put down by another, till at last, the people seeking 
a democracy, and finding they had no part in it, reposed 
upon the same government they had before proscribed. 
Thus also in Rome,—when Sylla offered the people lib¬ 
erty, they would not accept it because they had not vir¬ 
tue enough: and ever after, when despotism became 
intolerable, they struck a blow at the tyrant, but never 
at the tyranny. They had not virtue enough to change 
the form of government. Thus also will it be with the 
people of the United States when they become corrup¬ 
ted. For half a century, the Constitution and laws 
have been executed and respected, because the people 
have retained a portion of the same civic virtues which 
j)reserved their country in the Revolution, and rescued 
it from the hands of hereditary corruption; but, when 
ever the people shall have become so insensible to vir 
tue as to allow men to triumph over laws, they will be 
corrupt, and the republic lost. 

§ 515. Proposition 8tii. The Constitution of the 
United States proceeds from the people in their sovereign 
capacity. 

1 Montesquieu’s Spirit of Laws, book 3, chap. 3. 


STATE GOVERNMENTS. 


221 


the peculiar relations of \he federative system. To un¬ 
derstand these properly, we must go over clearly, and 
separately i\ie fundamental propositions upon which the 
government depends. In doing this, we shall endeavor 
to establish them both by the Constitution itself, and the 
fixed principles of political law. 

§ 508. Proposition 1st. ^Flie Government of the Uni¬ 
ted States is a Republic. 

By our seventh definition, a republic is that form of 
government in which the whole people, or only a part of 
the people, hold sovereign power, and by the preamble 
to the Constitution, we see that the government of the 
United States was formed by “we the people;” by 
Art. 1, Sect. 1, of the Constitution, we find that all 
legislative power is vested in ix. Congress; and by Sect. 
2d, that Congress is chosen by the people; hence it 
appears from the Constitution that the pjeople of the 
United States hold sovereign power; the government 
is therefore a republic. 

§ 509. Proposition 2d. The Government of the Uni¬ 
ted States is a Federative Republic. For we find in 
every article of the Constitution the recognition of 
states; by Article 1st, Sect. 2d, these states are repre¬ 
sented in Congress in proportion to their respective num¬ 
bers; by Sect. 3d, that these states have an equal rep¬ 
resentation in the Senate; by Art. 4, Sect. 2d, that 
these states have citizens; by Sect. 3d, that new states 
may be admitted into the Union; by Sect. 4, that the 
United States guarantee to these states a republican 
srovernmcnt; hence the United States is a Federative 
Republic, composed of states. 

§ 510. Proposition 3d. The Government of the Uni¬ 
ted States is a Democratic Federate Republic. 

By Definition 8th, a democracy is where the sovereign 
power is in the hands of the ichole people. By Art. ], 
Sect. 1, of the Constitution, the legislative power is 
vested in a Congress, composed of a Senate and House 
19 ^ 


222 


STATE GOVERNMENTS. 


of Representatives; by Sect. 2d, the representatives are 
chosen by the people, and the electors have the same 
qualifications as are necessary for the most numerous 
branch of the state legislatures; by Sect. 3d, the Senate 
is chosen by the state legislatures; and by Art. 2d, 
Sect. 1, the executive is chosen by electors appointed 
in such manner as the state legislatures may direct; 
hence, both legislative and executive branches of the 
government are chosen by the people, and the electors 
have the qualifications necessary for electors of the most 
numerous branch of the state legislatures; by reference 
to the state constitutions, vi^e find, that the electors for 
the most numerous branch of the state legislature are 
substantially the whole body of the people; hence, the 
government of the United States is a democracy, and as 
it is, by former propositions, a federative republic, it is 
a democratic federative republic. 

§511. Proposition 4th. The Democracy of the Uni¬ 
ted States is a Representative Democracy. 

By Art. 1, Sect. 2d, the representatives are chosen, 
&LC,. By Sect. 3d, the Senate is chosen by the legisla¬ 
ture ; and, by reference to the state constitutions it will 
be seen, the legislatures are chosen by the people; by 
Art. 2d, Sect. 1st, the executive is chosen by electors, 
appointed in such manner as the legislature may direct. 
By Art. 2d, Sect. 2d, the judiciary is appointed by the 
President and Senate; hence all the branches of the 
government are directly or indirectly chosen by the 
people; and hence the government is a representative 
democracy. 

§ 512. Proposition 5th. The foundation of the gov¬ 
ernment is the consent of the people. 

In the Declaration of Independence, it is laid down 
that governments derive their just powers from the con¬ 
sent of the governed, and the preamble to the Constitu¬ 
tion asserts that it was formed by «we the people.” 
The ratifications of all the states commence with «We 


STATE GOVEKNMENTS. 


223 


the delegates of the people;” hence the Constitution is, 
as it purports to be, founded only on the consent of the 
people. 

§513. Protosition 6th. The sanction of the govern^ 
ment is resi)onsihility to the people. 

By Art. 1, Sect. 2d, of the Constitution, the repre¬ 
sentatives are chosen every second year; hence they are, 
at the end of that time, directly amenable to the people; 
in addition to which, each individual member is liable to 
expulsion by the whole; by Art. 2d, Sect. 1st, the execu¬ 
tive is chosen eyevy four years, and is therefore likewise 
responsible to the people at the end of that time; by 
Art. 1, Sect. 3, he may be impeached, and by the votes 
of two-thirds of the Senate, removed from office for 
treason, bribery, and other high crimes and misdemean¬ 
ors. He is, therefore, both directly and indirectly 
responsible to the people. By Art. 2d, Sect. 2d, the 
President, in conjunction with the Senate, has the power 
of appointing ambassadors, judges, and all other superior 
officers; and by the declaration of Congress, and the 
practical construction of the Constitution,^ he has also 
the power of removing them; these officers, consequently, 
are all of them directly responsible to the President, and 
by Art. 1st, Sect. 2d, they may also be impeached; they 
are, therefore, responsible to the people through the 
President, and likewise by impeachment. Th.Q judicia¬ 
ry is the only part of the government not directly res¬ 
ponsible to the President; but they are indirectly; for, 
by Art. 2d, Sect. 2d, they are appointed by the Presi¬ 
dent, who is himself responsible, and by Art. 1st, Sect. 
2d, they may be impeached by the representatives of 
the people, who hold the sole power of impeachment; all 
branches of the government, therefore, and all its offi¬ 
cers, are made responsible to the people; hence, the 
sanction of the government is responsibility to the 
people. 


* Chapter 2, Section 312. 


224 


STATE GOVERNMENTS. 


§ 514. Proposition 7th. The principle of the govern¬ 
ment is the virtue of the people. 

This follows from several considerations: in a des¬ 
potism or monarchy, he who executes the laws also 
mnkes them; but in a popular government, he who ex¬ 
ecutes the laws is also subject to them. The monarch, 
then, who by bad counsel or negligence allows the laws 
to go unexecuted, may easily repair the evil by chang¬ 
ing his counsellors, or correcting his negligence. But 
when, in a popular government,* the laws cease to he ex¬ 
ecuted, as this can happen only from corruptwn, the state 
is already lost. Thus, when after the death of Charles 
I. the English attempted to establish a republic, they 
could not, because those who took part in public affairs 
had no virtue, and one party was continually opposed 
and put down by another, till at last, the people seeking 
a democracy, and finding they had no part in it, reposed 
upon the same government they had before proscribed. 
Thus also in Rome,—when Sylla offered the people lib¬ 
erty, they would not accept it because they had not vir¬ 
tue enough: and ever after, when despotism became 
intolerable, they struck a blow at the tyrant, but never 
at the tyranny. They had not virtue enough to change 
the form of government. Thus also will it be with the 
people of the United States when they become corrup¬ 
ted. For half a century, the Constitution and laws 
have been executed and respected, because the people 
have retained a portion of the same civic virtues which 
preserved their country in the Revolution, and rescued 
it from the hands of hereditary corruption; but, when 
ever the people shall have become so insensible to vir 
tue as to allow men to triumph over laws, they will be 
corrupt, and the republic lost. 

§ 515. Proposition 8tii. The Constitution of the 
United States proceeds from the people in their sovereign 
capacity. 

1 Montesquieu’s Spirit of Laws, book 3, chap. 3. 


STATE GOVERNMENTS. 


225 


By the 7th Article of the Constitution it was to be¬ 
come valid, among the parties to it, when ratified by the 
conventions of nine states; accompanying the Consti¬ 
tution was a resolution of the convention forming it, 
that it be laid before Congress, with a recommendation 
that it ^‘be submitted to a convention of delegates, 
chosen in each state by the people thereof, for their 
assent and ratification.” Agreeably to this recommend¬ 
ation and the article above cited, it teas referred to con¬ 
ventions of the people, within their several states ; 
these conventions came from the people in their original, 
sovereign, social they were assembled with¬ 

out any other form than what they imposed upon 
themselves, without any limits as to the authority they 
should either give or take away,—and in the name of 
the people only gave their assent to the proposed gov¬ 
ernment; all these ratifications w'ere made in the name^ 
of the people, and not the states. Without these ratifi¬ 
cations the instrument would have been invalid, and 
with them it received all the authority of a limited gov¬ 
ernment over the people and the states. Hence, it is 
obvious, that the Constitution proceeded from tfie peo¬ 
ple in their sovereign capacity. 

§ 516. Proposition 9th. The Constitution of the 
United States acts upon both individuals and states. 

That it acts upon states imperatively is obvious 
enough; for every article of the Constitution refers to 
states, and requires something to be done by them, or 
prohibits them from doing something. Thus, by Art. 1, 
Sect. 3, they are required to choose senators; by Sect. 

4, to prescribe the times, places, and manner of holding ' 
elections for senators and representatives, and by Sect. 
10, are prohibited every act which appertains to nationa.l 
sovereignty. 

It acts upon individuals thus: by the powers vested 
in Congress by Art. 1, Sect. 8, individuals may be sub- 
1 Elliott’s Debates, 247, 248. 


226 


STATE GOVEEXMENTS. 


jected, by the laws of the United States, directly to tax¬ 
ation, to militia service, to the rules of naturalization, to 
rules for the punishment of felonies on the high seas,— 
and also through the powers for the regulation of com¬ 
merce and for regulating the coinage; in all these, and 
in many other respects, the Constitution and laws of 
the United States act directly on individuals. 

§ 517. Pkotosition IOtii. The Constitutions of the 
states act upon individuals, hut not upon the government 
of the United States, nor upon each other. 

1. They act upon individuals, because nearly all the 
state legislation is municipal, and refers to individuals 
only. Thus, the establishment of municipal courts, 
the organization of juries, the division of towns, the in¬ 
corporation of local societies, and local taxation, all 
emanate from the state laws. 2- They do not act upon 
each other, because, as it respects each other, the states 
are all precisely equal, and have no authority over one 
another; it is no exception to this, that the Constitution 
has given a judgment in one state full force and validity 
in another; for this is a consequence of national, not 
state laws; ewen foreign judgments are prima facie evi¬ 
dence in other countries. 3. They cannot exercise any 
power over the national government, for that would 
place the national government at the mercy of any one 
of the states, and would be inconsistent with its exist¬ 
ence. Thus the state governments cannot tax the stocks 
of the United States government, nor any of the con¬ 
stitutional means employed by government for con¬ 
stitutional ends.^ 

§ 518. Proposition Htii. The government of the 
United States is not a mere league. ^ 

The proof of this may be found, 1st, in the intention 
of those who framed the Constitution; and 2dly, from 
the powers vested in the framers of it. 

1 lVI‘Cu]lough vs. State of Maryland, 4 Wheaton, 316. 

2 President Jackson’s Proclamation, 10th December, 1832, 


STATE GOVERNMENTS. 


227 


The evil intended to be remedied was that of a con¬ 
federation, or league- ivithout a sanction, and conse¬ 
quently without the means of enforcing its decrees. 
Such a confederation is in theory weak, and all experi¬ 
ence has proved it so. By the third article of the old 
Confederation, the nature of it was defined, and charac¬ 
terized as a “firm league of friendship for each other, 
for their common defence, the security of their liberties, 
and general welfare.” The powers of the Confedera¬ 
tion, or League, were vested in a Congress, without a Ju¬ 
diciary, and without an Executive,- in this Congress, the 
states were represented in their sovereign capacity, and 
treated with each other as with foreign nations; the peo¬ 
ple, moreover, were in no manner amenable to the judg¬ 
ments of the Congress; that body had no power over 
them; they were answerable only to their state govern¬ 
ments ; this Confederation, therf, had no feature of a gov¬ 
ernment, and was in fact a simple meeting of ambassa¬ 
dors, vested with more than ordinary powers. This, 
then, was the evil to be remedied,— the want of a govern¬ 
ment. Looking then to the existing evil, and to the ob¬ 
ject in view, we should conclude, a priori, that the Con¬ 
stitution thus formed, was intended to be a government, 
and not a league. 2dly. But, if we go further, and look 
to the actual instructions of the delegates, we shall find, 
that the intention was to constitute a government, and 
preserve the union. Thus, the express words used in 
the credentials the delegates from Connecticut, New- 
York, and New-Jersey, were to take such measures as 
were necessary to “render the federal Constitution ade¬ 
quate to the exigencies of the government and the pre¬ 
servation of the union.''’' And such was the substance 
of the instructions from the majority of the states. 
Hence, we see that the intention was to form a govern¬ 
ment, and not a league. 

§ 519. But 2dly. That they did forma government, 
and not a league, appears fi*om the terms of the Consti- 


228 


STATE G0VERN3IENTS. 


tution; for by the articles of confederation, and those of 
all leagues, purporting to be such, the states consti¬ 
tuting them reserved to themselves an equal vote in the 
Congress; indeed, this is of the essence of all leagues; 
but, by the Constitution of the United States, the states 
have not an equal vote in the Congress, but in the House 
of Representatives vote by numbers, and in the Senate, 
though the representation is equal, the vote is by persons. 
Again, the acts of leagues bind only the states that com¬ 
pose them, and do not operate on persons. In the Con¬ 
stitution of the United States, however, the law's operate 
not only upon the states, but, as we have shown by 
Proposition 9th, upon the people at large, and individu¬ 
ally. Besides these considerations, the division of the 
powers granted, into Executive, Legislative, and Judi¬ 
cial,—the mode of electing the President, and the care¬ 
ful construction of the Judiciary, all incontestibly prove 
that the Constitution constitutes a government, and not 
a league.^ 

§ 520. Proposition 12th. The government of the 
United States is sovereign in its national capacity. 

By our first definition, sovereignty is the highest 
power in a state; and for a state or nation to be sove¬ 
reign, it must govern itself and be independent of other 
powers.^ Now', if we apply these characteristics to the 
government of the United States, we find that it pos¬ 
sesses them all. 1st. It is the highest power in a na¬ 
tional sense, because it is the only power which, in the 
United States, can exercise national authority; it is the 
only power Avhich can lay taxes upon all the states; the 

1 Note. —The obvious intention and understanding of the framers of 
the Constitution upon this point, might be illustrated by the quotation 
of many passages. 1 shall only give one. 

“A government by compact is no government at all. You may as 
well go back to your congressional federal government, where, in the 
character of ambassadors, they may form treaties for each state.'^’ 

Mr. Morris'' Debates in the Federal Convention. 

2 Vattel’s Law of Nations, p. 16. 


STATE G0VE11N3IENTS. 


229 


only power which can declare war, make peace, and 
enter into treaties, coin money, or regulate commerce, 
or in short do any act characteristic of national sove¬ 
reignty. 2d. It governs itself, for, by Art. 1st. Sect. 
8th, Art. 2d, Sect. 2d, Art 3d, Sect. 2d, and Sect. 3d, of 
the Constitution, the government of the United States is 
vested with all the powers of seTf-government. 3d. It 
is independent of all other powers; for, by the Declara¬ 
tion of Independence, and the subsequent successful ter¬ 
mination of the War of the Revolution, and the adop¬ 
tion of the Constitution by the states then composing 
the Confederation, the United States became indepen¬ 
dent of diW foreign nations; and we have already shown, 
by Proposition 10th, that the states could not control the 
general government within constitutional limits, there¬ 
fore the United States are sovereign in their national 
capacity.* 

§ 521 . Proposition 13 th. The governments of the 
states are sovereign in a municipal, and are not sove¬ 
reign in a national capacity. 

By the 10th article of the amendments to the Con¬ 
stitution of the United States, ^‘ the powers not dele¬ 
gated to the United States by the Constitution, nor pro¬ 
hibited by it to the states, are reserved to the states re¬ 
spectively, or to the people.” Now the power to make 
municipal laws,—by which are meant all laws which 
concern only the state, directly and immediately,—is 
not vested in Cc-ngress, neither is it prohibited to the 
states, it is consequently among the reserved rights of 
the states and the people : and by the various state 
constitutions, we find that the people have vested it, so 
far as is not inconsistent with personal rights, in the state 
legislatures. It is therefore their proper prerogative to 
exercise it. Thus,>11 the laws relative to state taxa¬ 
tion, chartered companies, eleemosynary institutions, 
and police regulations, are within the powers of state 
* President Jackson’s Proclamation, lOth December, 1832. 

20 


230 


STATE GOVERIVMENTS. 


legislatures, they are, therefore, sovereign in their muni¬ 
cipal capacity. They are not sovereign in a national 
capacity, because in that respect they are not “the 
highest power.” The government of the United States, 
as we have seen by Proposition 1 gth, is sovereign in a 
national sense, and it is only sovereign in that sense; 
for, by Art. 1, Sec. 10, the states are forbidden to exer¬ 
cise any power characteristic of national sovereignty; 
thus, they cannot make peace, or declare war, tax im¬ 
ports and exports, make treaties, and coin money; they 
are, therefore, not sovereign in that sense. 

§ 522. Proposition ' 14 th. The government of the 
United States is superior to, and sovereign over the gov¬ 
ernments of the states, in. those cases in which they are 
constitutionally brought into collision. 

This may be proved by examples drawn from each of 
the great departments of the governments. 1. Of the 
Legislative. Thus, Congress have the power to tax 
articles of consumption, so have the states; now, 
should Congress and the states both tax the same arti¬ 
cle, the state cannot, by excessive taxation, exhaust 
the article so as to prevent the collection of the United 
States tax ; again, the states may grant, as New-York 
did, a peculiar privilege to navigate the waters of their 
states ; but should another person get a coasting license 
under the navigation laws of the United States, the mo¬ 
nopoly must yield to the laws of Congress; again, we 
have already seen, that Congress can constitutionally 
make a law securing priority of payments, and such a 
law, whatever the state laws may be, must have prece¬ 
dence. 

§ 523. 2. Of the Judiciary. By Art. 3d, Sect. 1st, 
of the Constitution, the judicial power is expressly ex¬ 
tended to all cases in which the United States are a 
party, and to all controversies between two or more 
states. In all judicial matters, therefore, between the 
United States and the states,—the United States gov- 


STATE GOVERNMENTS. 


231 


ernment are supreme, and all matters in relation to such 
controversies, must be decided according to the Consti¬ 
tution and laws of the United States. The legislatures 
of the states cannot annul the judgments, or determine 
the jurisdiction of the courts of the United States.* 

§ 524. 3. Of the Executive. By Art. 2d, Sect. 2d, 
of the Constitution, the President is commander-in-chief 
of the militia of the several states when called into ser¬ 
vice; and as a consequence of this power, whenever the 
troops of the United States, and the militia are on ser¬ 
vice together, the officer commanding the troops of the 
United States, commands the whole. 

Hence, we see, that in ail cases where there can be a 
constitutional collision between the authorities of the 
United States and those of the states, the former are 
superior to, and sovereign over the latter* 

§ 525 . Proposition 15 th. The people of the United 
States are one nation. 

This may be shown by considerations drawn from 
various sources; 1st. We see by.the adoption, and sub¬ 
sequent history of the Constitution, that the United 
States have, for nearly half a century, been living under 
one government; and, by Proposition 12th, that this gov¬ 
ernment possesses entire national sovereignty ; with re¬ 
spect, therefore, to its exterior relations, the United 
States, are one nation ; they are represented, and known 
ofcially, as such, all over the world. Again, they are 
such internally as well as externally ; for, by Proposi¬ 
tion 8th, we have demonstrated that the Constitution of 
the United States proceeds from the people in their sov¬ 
ereign capacity. It did not proceed from the states, as 
separate communities, and throughout all the proceed¬ 
ings on its adoption, this idea strongly predominated. 
States are recognized throughout the Constitution, but 
only as instruments in the hands of the same people who 
are alike the authors, both oi the Union and of the 
‘ 5 Cranch* 115. * 


STATE GOVERNMENTS. 


23 ^ 

states. The people, on the occasion of the adoption of 
the Constitution, acted in their original, sovereign, na¬ 
tional capacity. Having thus originated, we see that 
the Constitution is binding, not upon the states only, but 
upon the whole people. It acts upon them individually, 
and therefore as one nation. This we have seen in 
Proposition 9th. Further, no small proof of this propo¬ 
sition, like that of others, may be derived from a view 
of the object and intentions of those who instituted the 
government. The single object of the present govern¬ 
ment was to perpetuate the union, and consolidate the 
national interests. This is expressly stated in all the 
proceedings prior to the formation of the Constitution, 
in the debates of the Federal Convention,* and in the 
admirable letter 2 of General Washington, transmitting 
the Constitution to the governors of the several states. 
«ln all our deliberations on this subject, we kept steadily 
in our view that which appears to us the greatest inter¬ 
est of every true American, the consolidation of our 
union, in which is involved our prosperity, felicity, 
safety,—perhaps our national existence.” The senti¬ 
ments of Washington were doubtless those of all, at 
that time, except a very few, who were jealous lest the 
national should entirely destroy the state governments. 
Time has shown that such jealousies were wholly illu¬ 
sory, and the only danger is, that the states may en¬ 
croach too far on the prerogatives of the general gov¬ 
ernment. 

§ 526. Another consideration in favor of the entire 
unity of the nation, and its future continuance, may be 
found in the unity of its language and manners. It is 
believed that no nation on earth is so entirely homoge¬ 
neous. If we look to Great Britain, we find that peo¬ 
ple composed of four different nations, the Welch, 
English, Irish, and Scotch. Between the original lan¬ 
guages of these people there is scarcely a resemblance. 

»4 Elliott’s Debates, 56, 137, * Idem, 248. 


STATE GOVERNMENTS. 


233 


If we limit the examination to England, we find the 
dialects of London and Yorkshire more diverse than 
those of the extreme parts of our union. If we look to 
France, it is the same. Germany also is composed of 
people speaking different tongues. The vast empire of 
China is the same. But how is it in the United States? 
From Maine to Missouri, through all the United States, 
their language is the same; there is no change of tongue: 
the only discoverable difference is in the use of partic¬ 
ular words, which occasionally betray the birth of the 
speaker. It is true there are occasional settlements of 
Germans, but they ^re too few in comparison with the 
mass, to mark any particular district with a distinct lan¬ 
guage. 

With respect to ivritten language, it is everywhere 
the same. Even the Grecian, pure as it is found in 
Homer, contains more dialects than can be found in the 
whole compass of American authors. 

§ 527. The same remark which we have made with 
respect to language, may be affixed with nearly equal 
force to manners. There are few customs or habits in 
one portion of the union, not to be found in another; 
none which could give one district a distinct national 
character from another. 

The United States are, therefore, emphatically one 
nation. Politically, socially, morally, they are stamped 
with one character, and must share the same destiny. 

§ 528. Proposition 16th. The government of the 
United States u a government of majorities. 

In the conventions of the people which ratified the 
Constitution, a majority in any one convention made the 
decision; for no other rule could be applied when they 
were subordinate to no authority but their own. But in 
the Constitution of the United States, and in those of 
the several states, this principle is everywhere manifest. 
1st. Of the Legislature; members of the House of 
Representatives are qhosen by majorities of the people, 
20 * 


234 


STATE GOVERNMENTS. 


and the House of Representatives decide by majorities; 
and by Art. 1st, Sect. 5, a majority constitutes a quorum. 
Members of the Senate are chosen by majorities of the 
Legislatures, who are themselves chosen by majorities 
of the people. A majority of the Senate likewise decide 
all legislative questions,—except one, which will be 
hereafter mentioned. 

§ 529. The Executive is chosen by the majority of the 
electors, and when there is no such majority, by a ma¬ 
jority of the state representations in the House. The 
electors are chosen by majorities of the people, or of 
the state legislatures. It is true, there is a possibility, 
by a combination of majorities in minor districts, that the 
executive should be elected by a minority of the votes 
of persons; but this is a contingent occurrence of very 
remote probability. It is a case not within the con¬ 
templation of the Constitution, which could only provide 
for the common course of human events. 3. Of the 
Judiciary. The judges are appointed by the President, 
who is elected by a majority; and their appointments are 
confirmed by the Senate, who also are elected by a ma¬ 
jority. They are, therefore, appointed indirectly by a 
majority. But the theory of the Constitution required 
that they who, of all the members of the government, 
should be purest from every touch of violence or cor¬ 
ruption, should by many checks and guards be placed as 
remote as possible from popular action. 

§ 530. The exceptions to this almost universal rule 
are cases of obvious and urgent propriety. 1st. The 
Senate cannot confirm a treaty without the concurrence 
of two-thirds of its members. The reason of this is, 
that treaties have, by the Constitution, the validity of 
laws; yet they are made by the Senate, and President, 
without the concurrence of the Representatives, and 
therefore, ought to be enacted by the Senate, with more 
than usual unanimity. It is therefore provided, that 
two-thirds must concur in the confirmation of a treaty. 


STATE GOVERNaiENl'S. 


235 


2d. The second exception is in the case of an impeach¬ 
ment. This also requires two-thirds to make a convic¬ 
tion. This is in order to give greater certainty, accu¬ 
racy, and solemnity to convictions involving office, prop¬ 
erty, and reputation. 

Thus we see that the whole structure of the govern¬ 
ment is based upon the acts of majorities, and that these 
majorities, at last, rest upon a majority of the whole 
people. 

§ 531. Proposition 17tii. The government of the 
United States is perpetual, unless abrogated by the will 
of a majority of the whole people. 

A government can only be abrogated by the same 
power which brought it into existence. Now, by Propo¬ 
sition 8th, the Constitution of the United States proceeds 
from the people in their sovereign capacity. The peo¬ 
ple then, in their sovereign capacity only, can abrogate 
it. That they have the power to do so is obvious 
enough; it is only asserting the common right of all 
nations to institute, alter, and amend their forms of 
government. That is the right of revolution. Till that 
right is exercised, the Constitution is perpetual. 

§ 532. But what is meant by the people in their sov¬ 
ereign capacity? Are not the states that sovereignty? 
No; for we find the following provisions among the 
amendments to the Constitution, 

Article 9th, The enumeration in this Constitution of 
certain rights, shall not be construed to deny or disparage 
others' retained by the people. 

Article 10th. The powers not delegated to the United 
States by the Constitution, nor pj'ohibited by it to the states, 
are reserved to the states respectively, or to the people. 

Now in these articles there are three sets of rights 
recognized. 1. Rights granted to the government of 
the United States. 2. Rights granted, that is, “not 
prohibited by it” to the states. 3. Rights retained by 
the people. Now the states, as here understood, the 


236 


STATE GOVERNMENTS. 


State governments cannot represent the original sove¬ 
reignty of the people, because out of three portions into 
which the people have voluntarily divided their sove¬ 
reignty, the states possess only one. This must be so, 
or there is no meaning in those articles of the Consti¬ 
tution. The states, therefore, imbody only a part of 
the sovereignty of the people, and in the same sense 
that, mathematically, a part is not equal to the whole, , 
they cannot perform the acts of a greater power j they 
cannot unmake what they never had power to make. 

§ 533. But, may not the people of a state, assembled 
in its sovereign capacity, by means of delegates, or 
otherwise, abrogate the Constitution as it respects itself, 
and secede from the Union? No. By Proposition 9th, 
the Constitution acts upon individuals. Now, the in¬ 
stant the people of a state cease to act officially through 
its state governments, they act individually, and are 
upon the level with the people of a town, county, or two 
states together. The Constitution acts upon individu¬ 
als without any reference to state lines. In what way, 
then, could they escape the influence of the laws? Had 
they never voluntarily come under them, these laws 
could not have had any influence over them; or had they 
fixed a period to the duration of that influence, then at 
the expiration of that time they could have withdrawn. 
But, having taken neither of these positions, they can 
escape from the influence of their own act only by a 
revolution, and a revolution can be made only by a ma¬ 
jority. A majority may do it, because, when govern¬ 
ment is to be thrown off, and men assume their original 
rights, there is no superior authority to limit the acts of 
a majority. Any less number, whether composing a 
state or parts of several states, cannot do it without sub¬ 
jecting themselves to the penalties of treason ,—as they 
would not have the power to revolutionize the govern¬ 
ment, but would only be acting contrary to its laws and 
the existing authorities. 


STATE GOVERNMENTS. 


237 


§ 534. Thus we have seen that a state cannot abro¬ 
gate the Constitution, because its government is vested 
with only a portion of the sovereignty: and the people 
of that state cannot do it (unless they are a majority of 
the whole Union), because they must act individually, 
and the laws of the government acting upon individuals, 
any resistance by them to any constitutional exercise of 
authority would incur the penalties of treason. 

It follows then, necessarily, that the government of 
the United States is perpetual, unless abrogated by the 
will of the majority of the whole people. 

§ 535. We have now recited, with such proof as 
seems to us sufficient, the propositions which include the 
nature, principles, and relations of the United States 
Government. We have established; 

1. That this Government is a Democratic Federative 
Republic; 

2. That the Democracy of the United States is a 
Representative Democracy; 

3. That the foundation of this Government is the 
consent of, and the sanction of it is responsibility to, the 
people; 

4. That the great conservative principle of the 
government is the virtue of the people; 

5. That the Constitution of the United States pro¬ 
ceeds from the people in their sovereign capacity, and 
that it acts upon individuals as well as states. 

6. That the constitutions of the states act upon 
individuals, but not upon the Government of the United 
States, nor upon each other; 

7. That the Government of the United States is sover¬ 
eign in a national,and the states in a municipal capacity; 

8. That the Government of the United States, is in 
case of constitutional collision, sovereign over, and 
superior to the state governments; 

9. That the Government of the United States is not 
merely a league; 


238 


STATE GOVER?rMENTS. 


10. That the Government of the United States is a 
government of majorities; 

11. That the Government of the United States is per¬ 
petual, unless abrogated by the will of a majority of the 
whole people; and that, consequently, no state can 
secede. 

§ 536. With these propositions impressed upon the 
mind, it is thought that little misconception can exist 
upon the nature and construction of the United States 
government. Some of them have, it is true, been dis¬ 
puted in times of waiTnth and excitement; but all of 
them have been supported by a great majority of the 
American people, and illustrated by the acts of public 
bodies, and the works of distinguished statesmen from 
the Revolution to the present time. 


■i 



I ' -.:r ; . p 




II ; 1 




BOOK II. 


PRACTICAL OPERATION OF THE NATIONAL AND STATE 
GOVERNMENTS. 


CHAPTER L 

I • 

PRACTICAL OPERATION OF THE NATIONAL CONSTITUTION. 

i _ ' ' 

§ 537. When the Constitution had been ratified by 
the requisite number of states, it had acquired its legal 
fiorce, hwt was inert till properly put into operation. 
The people had made it an instrument of great and 
beneficent powers, but their action under it was neces¬ 
sary to give it life. The mode of doing this had been 
provided by the convention. They had “resolved that, 
as soon as the conventions of nine states should have 
ratified the Constitution, Congress should fix a.day on 
which electors should be appointed by the states which 
should have ratified the same, and a day on which elec¬ 
tors should assemble to vote for President, and the time 
and place of commencing proceedings under the Consti¬ 
tution. That, after such publication, the electors should 
be appointed, and the senators and representatives elec¬ 
ted,” and such other regulations as were necessary, 
&,c.; and that, “after the President was elected, he and 
Congress should without delay, proceed to execute the 
Constitution.'^''^ 

> 4 Elliott’s Debates, 249. . 


239 




240 


PRACTICAL OPERATION OF 


§ 538. Accordingly Congress, after the ratification of 
a sufficient number of states in July, 1788, ‘Ordered, 
that the several ratifications of the Constitution of the 
United States be referred to a committee, to examine and 
report an act for putting said Constitution into operation. 
A committee was appointed, and the following resolu¬ 
tion passed,^ “Resolved, that the first Wednesday in 
January next be the day for appointing the electors in 
the several states which, before said day, shall have 
ratified the Constitution; that the first day in February 
next be the day for the electors to assemble in their res¬ 
pective states, and vote for a President; and that the 
first Wednesday in March next be the time, and the 
present seat of Congress the place for commencing pro¬ 
ceedings under said Constitution.” 

§ 539. In pursuance of this resolution, the elections 
in the several states were held, at the time appointed, 
and on Wednesday, the Ath of March, 1789, the Con¬ 
stitution loent into practical operation. On the 30th 
April, George Washington, unanimously elected, was 
inaugurated President of the United States. Subse¬ 
quently to this. North Carolina and Rhode Island, which 
had not then ratified, joined the Union. Soon after, a 
number of amendments, the effect of which we have 
heretofore considered, were recommended to the states, 
by two-thirds of Congress, and adopted. 

§ 540. Thus the operation of the Federal Govern¬ 
ment was begun. The arrangement of the Judiciary, 
the rules of proceedings, the organization of the depart¬ 
ments, and the appointment of officers, were within the 
power of Congress and the Executive, and formed the 
earliest objects of their consideration. 

§ 541. In practice, as well as theory, the government 
is divided into three great departments, having distinct 
duties to perform,—the Executive, the Legislative, and 
* Elliott’s Debates, 221. 2 Idem. 222. 


THE NATIONAL CONSTITUTION. 241 

the Judicial; in this order, we shall consider the prac¬ 
tical operation of the government. 

1. OF THE EXECUTIVE. 

§ 542. By Art. 2d, Sect. 1st, of the Constitution, the 
executive power is vested in the President. By Sect. 2d, 
he is commander-in-chief of the army, of the navy, and 
of the militia when called into actual service. He may 
require the opinion in writing of the principal officers of 
the executive departments, upon any subject relating to 
the duties of their offices, and has power to grant re¬ 
prieves, pardons, &-c. &.c. He has the appointment, in 
conjunction with the Senate, of ambassadors, other pub¬ 
lic ministers, consuls, judges of the Supreme Court, and 
all other officers of the United States, except those 
inferior officers whose appointment the Congress may 
vest in the heads of departments, courts, &.c. He re¬ 
ceives ambassadors and other public officers, takes care 
that the laws are faithfully executed, and commissions 
officers. 

§ 543. These are all the general duties annexed by 
the Constitution to the office of President. We have 
already seen that they could not be performed, till 
Congress had first erected the offices which were to be 
filled, and enacted the laws which were to be executed. 
We shall now see how this was done. 

§ 544. The constitutional duties above enumerated 
comprehend all the executive duties of the government; 
for the President is the only executive officer known to 
the Constitution, and the only one responsible to the 
people. The duties, however, are obviously too numer¬ 
ous and various for one man; hence, the Constitution 
contemplated the appointment of inferior officers, and 
the division of labor among subordinates. For this 
purpose Congress has, at different times, created the 
Departments of State, Treasury, War, Navy, Post-office, 
and Mint. The duties of each of these departments 
21 


242 


PRACTICAL OPERATION OP 


have been prescribed, and may be considered sepa¬ 
rately. 

1. OP THE DEPARTMENT OP STATE. 

§ 545. This department was created by the act of 
the 15lh September, 1789. The presiding officer is 
called Secretary of State, and, like other officers, is 
commissioned, with the advice and consent of the 
Senate. His duty is to conduct the foreign affairs of 
the United States, whether by correspondence, com¬ 
missions, instructions, or memorials, with foreign pow¬ 
ers or public ministers. He keeps the seal of the 
United States and affixes it to all civil commissions, 
provided they have the signature of the President. He 
is intrusted with the publication and distribution of all 
acts and resolutions of Congress, and all Treaties with 
Foreign nations and Indian Tribes.* He preserves the 
original of all treaties, public documents, laws, and cor¬ 
respondence with foreign powers: he preserves copies 
of the several statutes of the states, grants passports 
to citizens, and controls the Patent Office. 

§ 546,. These duties may be divided into classes. 
1. Those which concern foreign intercourse; 2. Those 
which concern the preservation and distribution of the 
laios; 3. Which regard the authenticity of commissions; 
4. Those which concern copyrights and patents. 

1. Of Foreign Intercourse It is necessary that 
nations should hold intercourse together, for the purpose 
of regulating trade, avoiding injuries, and terminating 
differences. It is equally obvious, that they cannot treat 
together immediately, as two individuals; they must, 
therefore, hold their conferences by means of delegates, 
that is, by public ministers.'^ 

§ 547. A public minister properly signifies any one 
charged with public affairs, but is here understood as 
one who is charged with the care of public affairs 

* Act of April 20th, 1818. 

2 Vattel’s Law of Nations, book IV. chap. V. sect. 55, 56. 


THE NATIONAL CONSTITUTION. 243 

at a foreign court. Of these there are now several 
orders. 

§ 548. The highest order is one which properly 
represents the government, or sovereignty, and is enti¬ 
tled to act for it upon all occasions. A person of this 
rank is called an Ambassador.^ 

§ 549. The next rank is that of Envoy. This term 
signifies one ivho is sent, and means a minister sent for 
a particular purpose, as to adjust a special commercial 
treaty, or arrange disputed boundaries. There are 
envoys ordinary and extraordinary: of the same rank 
also are ministers plenipotentiary, who are sent with 
powers to make a particular treaty; thus, Messrs. 
Adams, Clay, &c. were Ministers Plenipotentiary to 
form the Treaty of Peace at Ghent. 

§ 550. The third order is that of Ministers Resident, 
or Charge d"^Affaires, which means one who is charged 
with the ordinary affairs of the nation at a foreign 
court. 

§ 551. These are ail the orders of public ministers, 
as commonly understood, resident at foreign courts. 
There are, however, several other classes of public offi¬ 
cers, through whom intercourse is held with foreign na¬ 
tions. 

§ 552. To each foreign embassy is attached a Secre^ 
tary of Legation: this oilicer performs the duties of a 
secretary, or clerk to the mission, and is frequently left 
in charge of affairs when a minister is recalled. 

§ 553. Consuls are commercial agents, appointed to 
reside in the sea-ports of foreign countries, with a com¬ 
mission to watch over the commercial rights and privi¬ 
leges of the nation deputing them.^ 

Their duties are limited and defined in treaties of 
commerce, and by the statute regulations of the country 
they represent. No nation is bound to receive a con- 

1 Vattel’s Laws of Nations, chap. VI. sect. 71, 72. 

2 1 Kent’s Comm. 40. ■ . 


244 


PRACTICAL OPERATION OP 


sul, unless it has agreed to do so, by treaty, and its re¬ 
fusal to do so, is no violation of peace and amity.^ 

They are now, however, almost universal among civ¬ 
ilized nations, and exercise a very important part,— 
both as agents for cmnmercial interests, and in watch¬ 
ing over national affairs. 

§ 554. The ^laws of the United States prescribe the 
following duties to American Consuls. 1. It is made 
their duty to act as administrators upon the estate of such 
American citizens as shall die abroad, without leaving 
a legal representative, partner, or trustee, and at the 
end of one year account to the Treasury of the United 
States for his effects, &c. &c. 

§ 555. 2. When vessels are stranded, it is their duty 
to take all proper measures to save the same, and when 
no master, owner, or consignee is present, to take care 
of the goods and effects, and deliver the proceeds to the 
owners. 

§ 556. 3. '’It is their duty to receive from vessels 
sailing from the ports of the United States their Regis 
ters. Sea Letters, Passports, &c., and when said vessel 
produces her clearance, to return them to the master. 

§ 557. 4. Whenever a ship is sold, or her crew dis¬ 
charged in a foreign port, to receive from the master 
one month?s pay from each seaman, to constitute a fund 
for the maintenance of destitute American seamen, and to 
account for the same with the Treasury every six 
months. 

§ 558. 5. It is the duty of Consuls to provide for the 
support and passage to the United States of destitute 
American seamen, in a reasonable manner, and at the 
expense of the United States. For the proper perform¬ 
ance of these duties, they are obliged to give bonds 
with securities, and for their time and trouble are 
allowed certain specified fees; their delinquencies are 
punished by fine and imprisonment. 

1 1 Kent’s Comm. 42. 2 Act of April, 1792. * Act of Feb. 1803. 


THE NATIONAL CONSTITUTION. 


245 


§ 559. These consular agencies are established in 
nearly all the countries and ports where the United 
States have any commerce. Their great object is to 
ascertain the legality of the trade of American vessels 
in foreign ports, and afford protection and relief to 
American seamen and citizens, who may be in foreign 
countries. 

§ 560. 2. Credentials. A imhlic minister is known 
by his credentials. ‘ Letters of Credence are the instru¬ 
ments which authorize and establish a minister in his 
character, with the government to whom they are ad¬ 
dressed: they are his general Letter of Attorney. 

§ 561. Instructions are the secret letter of directions 
given by a government to its minister, to inform him 
how he is to act, and what he is to perform. 

§ 562. For the purpose of preserving the dignity of 
their respective governments, and performing their du¬ 
ties with safety, public ministers and their servants 
are by the laws of nations^ allowed certain privileges, 
viz. 

§ 563. 1. The persons of ministers are sacred and 
inviolable among all nations. This privilege extends to 
them from the time they first enter the country to which 
they are sent. So also they are allowed safety 

in all countries through which they pass. 

§ 564. ^A public minister an entire independence 
from the jurisdiction and authority of the state where 
he resides. To those rules there is an ^exception, in 
case of an ambassador’s converting these privileges into 
licentiousness. If an ambassador abuses his privileges, 
and commits wrong, he may be restrained; 1. By appli¬ 
cation to his master, and if he fail to recall him, by 
ordering him out of the country. 2. In case he take up 
arms, or commit open violence, he may be quelled by 
force. In case he intrigue, or form a conspiracy, he 

1 Vattel, book IV^ chap. Vf. sect. 7G, 77. 

2 Idem. sect. 81, 83, 92 , 93 . 3 pukin’s Civ. Hist. vol. 11. 

21 ^ 


246 


PRACTICAI, OPERATION OF 


may be arrested, or otherwise disposed of according to 
the exigency of the case. well known instance of 
that kind occurred in this country, in the case of Genet, 
the French minister, during the administration of Gen¬ 
eral Washington. The President only requested the 
French government to recall Mr. Genet, which was 
done; no doubt harsher measures would have been 
justifiable. 

§ 565. Consul is not such a public minister as to 
be entitled to the privileges of that character, nor is he 
under the special protection of the laws of nations. 

§ 566. The credentials of foreign ministers are re¬ 
ceived by the Secretary of State, and examined; all the 
business and correspondence is carried on by him: it is 
in writing, and placed on record. 

§ 567. Passports to visit foreign countries are made 
out by the Secretary of State. Passport properly signi¬ 
fies a safe conduct in war. In such case, the govern¬ 
ment or authority granting them is bound to make good 
any damage the bearer of them might suffer. In peace, 
it is little more than a certificate of citizenship, and 
entitles the bearer to safety and civility among foreign 
nations, so far as respects the public authorities, when 
the law's are not violated. 

§ 568. 2. Preservation and publication of the Laws. 
The originals of all treaties, laws, resolutions, and 
diplomatic documents are deposited in the office of the 
Secretary of State. The laws, resolutions, and orders 
of each Congress are printed, by direction of the Secre¬ 
tary of State, and distributed among heads of depart¬ 
ments, members of Congress, public libraries, and the 
several states of the Union. It is made the duty of the 
Secretary to procure copies of the statutes of the several 
states, and preserve them. 

§ 569. The laivs, resolutions, and orders of Congress 
are annually printed, under the direction of the Secre- 

Vattel, book IV. chap. VII, * Kent’s Comm, vol. I, p. 43, 


THE NATIONAL CONSTITUTION. 


247 


tary, in three newspapers, in each state and territory 
of the United States. These papers are selected by him, 
and receive a fixed compensation for the publication. 

§ 570. ^ In addition to the publication of the laws 
here mentioned, the Secretary is charged with the 
formation and publication of a hiennial catalogue, for the 
use of Congress and the public likewise, of all the 
officers, civil and military, of the United States, with 
their compensation, the state where born, and where 
employed ; and also the names, force, and condition of 
all the vessels belonging to the United States, when and 
where built. This Register informs Congress, and 
through them the people, the exact number and location 
of all the officers of the United States, and the amount 
required for their support. 

§ 571. 3. Authenticity of Commissions. It is neces¬ 
sary that all commissions of public ofiicers should be 
rendered authentic by certain signs and signatures. For 
this purpose, it is provided that all commissions shall 
be signed by the President, who is the appointing 
power, and sealed with the seal of the United States 
This seal is kept in the Department of State, and affixed 
to all civil commissions, which have been signed by the 
President. There is also in the Department of State 
a Seal of Ofice, used by the Secretary to authenticate 
copies of records and papers, which copies are received 
as evidence equally with the originals. 

§ 572. 4. ^Patent Laics and Copyrights; —The Pa¬ 
tent office is under the control of the Secretary of State. 
The provision of the Constitution, under which patents 
are obtained, has already been discussed. 

§ 573. Thefor obtaining patents require, 1. That 
those who obtain patents should be either (Athens or 
aliens, having resided in the country two years. 2. That 
it be obtained by petition to the Secretary, in a form 

* Resolution of April, 1816. 

a Acts of February 21st, 1793, and April 17th, 1800. 


248 


PEACTICAL OPERATION OP 


prescribed. 3. That on presentation of such petition, 
thirty dollars must be paid into the Treasury of the 
United States. 4. There must be a specification or 
description of the art, invention, or discovery for which 
the patent is obtained. This must describe not only the 
form and construction, but the mode of using the ma¬ 
chine, &c. It must mention whether it is an improve¬ 
ment, or a new machine. It must be without refer¬ 
ence to drawing or model, and must be signed by the 
applicant, before two witnesses. 5. This must be ac¬ 
companied by an oath, or affirmation, that the applicant 
is the true inventor, &lc. 6. If not a citizen, the ap¬ 
plicant must make oath that the same has not, to his 
knowledge and belief, been used in this or any foreign 
country, and that he has resided in this country two 
years. 7- When the patent is for a machine, v, perspec¬ 
tive drawing -must accompany the specification ; and 
when it is complicated, there must be sections of the 
interior, and if required, a model. If it be for a com¬ 
position of matter, sufficient must be deposited for ex¬ 
periment. 8. When there are two applicants for the 
same invention, the law provides for the appointment of 
three arbitrators, one by each party, and one by the 
Secretary of State. 

§ 574. When patents are violated, the trespasser must 
pay to the patentee three times the actual damage proved 
to have been sustained. 

§ 575. An inventor may assign his right before the 
patent has issued, and the assignee may take out a 
patent, or he may assign the patent after it is obtained. 

§ 576. ’Copyrights are secured to the authors of 
books, maps, charts, and musical composition, by simply 
depositing in the Clerk’s Office of the District Court of 
the United States, for the district in which the author or 
proprietor lives, a copy of the title of such work, which 
the Clerk records. He must also deposite, in said 
1 Act of February 3d, 1831. 


THE NATIONAL CONSTITUTION. 249 

Clerk’s office, a copy of the work, within six months 
after its publication. 

§ 577. The time for which copyrights are taken out 
is twenty-eight years, and at the expiration of that time, 
the author, or his widow, or children, may renew the 
right for fourteen years longer, upon condition of record¬ 
ing the title a second time, six months previous to the 
expiration of the former term, and causing the title to 
be published in one or more newspapers for the space of 
four weeks. 

§ 578. The author must likewise give notice, by ad¬ 
vertisement in or on the work, that it is entered accord¬ 
ing to act of Congress. 

§ 579. In the case of books, the penalty infringing 
a copyright is the forfeiture of every volume so printed 
to the author, and the forfeiture for every sheet printed, 
or printing, of the sum of fifty cents, one-half to the 
author, and one-half to the United States; and in addi¬ 
tion, to pay the author all the damages, which he may 
prove or recover, on a special action upon the case. 

§ 580- We have now enumerated the several duties 
which devolve upon the Department of State, and the 
mode in wdiich they are performed. These duties are 
performed by the Secretary, assisted by clerks, messen¬ 
gers, watchmen, &c. 

For the officers in the State Department, see Table. 

2. OF THE TREASURY DEPARTMENT. 

§ 581. The object of this department is to manage-* 
the moneyed concerns of the government. It was crea¬ 
ted by the act of September, 1789. The general duties 
of the Secretary of the Treasury are to prepare and 
digest plans for the improvement and management of the 
public revenue, and for the support of the public credit. 
To execute such services relative to the sale of lands 
as may be required of him: to make reports, and give 
information to either branch of the legislature, in per- 


260 


PBACTICAL OPEEATION OF 


son or writing, respecting all matters referred to him by 
the Senate or House of Representatives, or which 
shall pertain to his office.^ 

§ 582. To perform the details of these duties, they 
have been distributed among, eleven sub-departments, 
viz. The 1st comptroller; the 2d comptroller; the 1st, 
2d, 3cl, 4th, and 5th auditors; the treasurer; register; 
solicitor; and land office. At the head of each of these 
sub-divisions is a separate officer, charged with specific 
duties, and who has under him a number of inferior 
officers. 

§ 583. 1. The Secretary of the Treasury himself 
prepares the annual report to be laid before Congress, 
of the state of the National Finances; prepares plans 
for the improvement of the revenue;—reports in an¬ 
swer to the calls of Congress, and gives a general su¬ 
perintendence to all the branches of the Department. 

§ 584. 2. The first comptroller ^ examines all ac¬ 
counts settled by the first and fifth auditors, and certi¬ 
fies the balance thereon to the register; countersigns 
warrants drawn by the Secretary of the Treasury, if au¬ 
thorized by law; reports to the Secretary the official 
forms to be used in the different offices. He superin¬ 
tends the preservation of the public accounts, subject to 
his revision, and provides for the regular payment of all 
money which may be collected. 

§ 585. 3. The second comptroller is independent of 
the first. It is the duty of this officer to revise and cer¬ 
tify the accounts stated in the offices of the second, 
third, and fourth auditors; in his office is kept a record 
of the accounts settled, showing the balances due to and 
from the United States; a record of all the requisitions 
for money drawn by the Secretaries of the War and 
Navy Departments; on its files are placed all contracts 
involving the payment of money within these depart- 

> Gordon’s Digest Laws of United Stales, articles from 249 to 262. 

8 Gordon’s Digest. 


V 


THE NATIONAL CONSTITUTION. 


251 


ments. It is the duty of this comptroller to keep an 
account with each specific appropriation, and to make 
such statements of the disbursements as may be requi¬ 
red by law. 

The ^decisions of the comptrollers upon all matters 
of account submitted to them, is jinal. 

In the mode of disbursing money from the Treasury, 
there is a system of checks provided, which gives perfect 
security to the national funds. Money, which has been 
appropriated, may by the President and Secretaries be 
advanced to the public agents, but those agents must 
render their accounts to the comptrollers, and be by 
them admitted before the payment will be legal. Ac¬ 
counts in general must first be audited, and then be 
certified by the comptroller. 

§ 586. 4. First Auditor. This officer receives all 
accounts accruing in the Treasury Department, and in 
relation to the revenue and civil list' and after ex¬ 
amination, certifies the balance, and transmits the 
accounts and vouchers to the first comptroller for his 
decision. 

§ 587. Second Auditor. This officer receives and set¬ 
tles, 1st. All accounts relative to the pay, subsistence, 
and forage of the army and officers, with the clothing of 
servants, &,c. &:-c. 2d. The accounts pertaining to the 

clothing and purchasing departments. 3. All accounts 
for the contingent disbursements of the army, for which 
no specific appropriations are made by Congress. 
4. Accounts relative to the hospital stores, drugs, medi¬ 
cines, &LC., and the claims of private physicians for ser¬ 
vices rendered officers and soldiers. 5. Accounts re¬ 
lating to the recruiting department. 6. Accounts 
relating to the ordnance department, arsenals, the arma¬ 
ment of new fortifications, and the arming of the militia. 
7. Accounts relating to the national armories. 8. Ac¬ 
counts appertaining to disbursements in the Indian de- 
* Act of May, 1793. ‘' ‘ 


252 


PRACTICAL OPERATION OP 


partment, such as pay of agents, presents, annuities, 
contingencies, Slc. 

§ 588. 6. Third Auditor. The duty of this officer 
extends to the auditing of all accounts for the quarter¬ 
master’s department, for money, and property; the same 
as to accounts for subsistence, and for fortifications; for 
the Military Academy, for roads, surveys, and other 
internal improvements; for revolutionary invalids, and 
half-pay pensions; pensions to widows and orphans, 
outstanding claims, and all unsettled accounts of the 
war department to July, 1815. 

§ 589. 7. Fourth Auditor. This officer receives all 
accounts accruing in the navy department, or in rela¬ 
tion to it. He examines the accounts, certifies the 
balances, and transmits the accounts, with vouchers, 
and certificates, to the second comptroller, for his de¬ 
cision upon them. 

§ 590. 8. Fifth Auditor. He receives all accounts in 
relation to the Department of State, the general post- 
office, and the Indian trade; examines them, certifies 
the balances, and transmits the accounts, with vouchers 
and certificates, to the second comptroller, for his 
decision upon them; he also has charge of superintend¬ 
ing the buildings and repairing the light-houses, light 
vessels, beacons, buoys and piers, and the adjustment 
of the expenditure of the light-house establishment.^ 

§ 591. 9. The Treasurer of the United States re¬ 
ceives and keeps the money of the United States, and 
disburses the same upon warrants drawn by the Secre¬ 
tary, countersigned by the proper comptroller and audi¬ 
tor, and recorded by the register. 

§ 592. 10. The Register of the Treasury keeps all 
accounts of the receipts and expenditures of the public 
money, and of all debts due to or from the United 
States. He receives from the comptroller the accounts 
which have been finally adjusted, and preserves them. 

> Gordon’s Digest, Art. 271 to 283. 


THE NATIONAL CONSTITUTION. 253 

He records all warrants for the receipt and payment of 
money at the Treasury; certifies the same, and trans¬ 
mits to the Secretary of the Treasury copies of the 
certificates of balances adjusted. It is also his duty to 
prepare statistical accounts of the commerce and navi¬ 
gation of the United States. 

§ 593. 11. The office of Solicitor of the Treasury 
was created by the act of May, 1830. He superintends 
all the civil suits commenced in the name of the United 
States until they are carried into the Supreme Court of 
the United States, when they come under the super¬ 
intendence of the Attorney-general; he instructs the 
district attorneys, marshals, and clerks, in all matters 
and proceedings appertaining to these suits, and receives 
from them after each term of court, reports of their situ¬ 
ation and progress; he receives from collectors reports 
of custom-house bonds put in suit, &c.; he establishes, 
with the approbation of the secretary, rules and regula¬ 
tions for the observance of collectors, marshals, dis¬ 
trict attorneys, Slc. This officer has charge, also, of 
the lands which shall be assigned, set-off, or conveyed 
to the United States in payment of debts; he has power 
also to sell and dispose of such lands, and also of those 
vested in them by mortgage. 

GENERAL LAND OFFICE. 

§ 594. Grants of lands were made prior to 1812, by 
means of Patents from the Department of State. By 
the act of April, 1812, there was erected a new office 
in the Department of the Treasury, called the General 
Land Office. The officer at the head of this is called 
the Commissioner of the Land Office.^ His duty is to 
superintend and perform all such acts and things, touch¬ 
ing the public lands, as were formerly performed by the 
Department of State, by the Secretary and Register of 
the Treasury, or which shall hereafter be assigned to 

1 Gordon’s Digest, Art. 301 to 311. 

22 


254 


PRACTICAL OPERATION OP 


said office. He shall keep a seal of office; and copies o( 
records, books, and papers under the seal of said office, 
shall be evidence in all cases in which the originals 
would be evidence. He shall, when required, make 
plots of any land surveyed under the authority of the 
United States, and give other information in relation to 
the public lands and the business of his office. All re¬ 
turns relative to the public lands shall be made to the 
commissioner, who shall audit and settle all accounts re¬ 
lative to the public lands; and it is his duty, upon the set¬ 
tlement of the accounts, to. certify the balances, and trans¬ 
mit them, with vouchers and certificates, to the Comp¬ 
troller of the Treasury, for his examination and decision. 

§ 595. Lailds granted for military services shall be 
granted by warrants from the Secretary at War, re¬ 
corded in the Land Office, and for which Patents shall 
be afterward issued. All Patents issued from the Land 
Office, are in the name of the United States, signed by 
the President, countersigned by the Commissioner, and 
under the seal of his office. Neither the Commissioner, 
nor any one in his office, are permitted to purchase any 
public lands for himself, or for any other person, or in 
trust for any one. 

SURVEY AND DISPOSITION OF THE PUBLIC LANDS. 

§ 596. Under the general head of the Land Office 
comes the mode of surveying, selling, and otherwise 
disposing of the public domain. We have already seen, 
that at the adoption of the Constitution, much difficulty 
arose in respect to the public lands,—that they were 
finally ceded to the general government,—that the gov¬ 
ernment established a separate department for their bet¬ 
ter regulation, and that a system has been enacted by 
Congress for their disposition. What that system is we 
shall now enquire. It relates, 1st. To the mode of sur¬ 
vey; and 2d. To the disposition of the lands, whether by 
sale or gift; 3d. To’the title of the occupants. 


THE NATIONAL CONSTITUTION. 


255 


§597. 1. mode of survey. Previous to the 

yeaT 1796, large tracts of land had been purchased by 
individuals of the government, grants had been made to 
Virginia and other states, for military bounty lands, and 
these lands had been surveyed by the respective parties 
claiming title. The surveys were of course different, 
having no relation to each other, and some of them, 
particularly those made under the authority of Virginia, 
extremely defective. In disposing of military lands, for 
example, no particular tract was sold, but a warrant was 
issued, and that warrant located by the holder on any 
ground not otherwise disposed of. These warrants 
likewise had different priorities, both as to date and loca¬ 
tion, which frequently had to be determined by litiga¬ 
tion. The locations also were often made to lap upon 
one another. Hence, it became obvious, that some sys¬ 
tem of survey and sale, having for its basis safety, reg¬ 
ularity, and permanency, must be adopted. By the acts 
of May, 1796, April, 1816, March, 1804, February, 
1806, and of March, 1817, a complete system of sur¬ 
veying, upon scientific principles, was established under 
the authority of Congress. 

§ 598. The surveying of the public lands is divided 
into six divisions, each of which is controlled by an offi¬ 
cer, called a Surveyor-general, who has under him a 
sufficient number of deputies and clerks, and is charged 
with surveying ail the public lands to which the Indian 
title is extinguished within his district. 

§ 599. The surveying districts, as now established, 
are, 1. The Surveyor-general, north-west of the Ohio, 
for the states of Ohio, Indiana, and the territory of Mich¬ 
igan. 2. The Surveyor of public lands south of Tennes¬ 
see, for the state of Mississippi. 3. Surveyor for the 
states of Illinois and Missouri, and territory of Arkansas. 
4. Survey or of public lands in Alabama. 5. Surveyor- 
general for Louisiana. 6. Surveyor of public lands in 
Florida. 


256 


PRACTICAL OPERATION OF 


§ 600. The duty of the Surveyor-general north-west 
of the Ohio, as prescribed by the act of May, 1796, 
was the basis of those for all the others. By that act, 
the Surveyor-general was directed to engage a sufficient 
number of skilful surveyors as deputies, and to survey 
and mark the unascertained outlines of lands lying 
within his district, to which the Indian title was extin¬ 
guished, and to divide it in the manner hereafter de¬ 
scribed; it was also his duty to frame regulations for 
the government of his deputies, administer the necessary 
oaths, and remove them for negligence or misconduct. 

§ 601. The mode in which he was directed to survey 
the land was this:-^The whole country to be surveyed 
is first divided by parallel north and south lines, or me¬ 
ridians^ exactly six miles apart, and these again are 
crossed by other lines precisely at right angles, or east 
and west, to the first, and also six miles apart; so that 
the whole country is divided into squares of six miles 
on a side, or thirty-six square miles: these squares are 
called townships, and are distinguished by numbers. 
These again are divided by lines parallel to the former, 
and exactly one mile apart, into other squares, con¬ 
taining one square mile. These last squares are called 
sections, and as there are exactly thirty-six square miles 
in a township, so there are precisely as many sections, 
numbered from one to thirty-six. The corners of the 
sections are all marked upon some tree near, and the 
number of the section is also marked. Each column 
of townships, or spaces between two of the north and 
south parallels, is called a Range, east or west of cer¬ 
tain meridians. To describe a section accurately, then, 
you say thus,—Section number 5, in township number 4, 
in Range 3d, west of the Meridian, drawn through the 
mouth of the Great Miami River. Such a description 
fixes the situation of the ground with absolute certainty. 
The purchaser has only first to go to the 3d column of 
townships west of the given meridian,—which he sees 


/ 


THE NATIONAL CONSTITUTION. 


257 


by the map must be in the eastern part of , Indiana,— 
then to look for township No. 4, and lastly for section 
5, of that township, which will be marked by corner- 
posts, and limited by lines blazed on the trees. Since 
the first law directing the mode of survey, others have 
been passed, authorizing their survey into half and 
quarter sections, which has been done; and of late they 
have been subdivided into eighths. Each section, or 
square mile, contains exactly 640 acres; of course, a 
half section has 320,—a quarter 160,—and an eighth 
80. A township, being 36 sections, contains precisely 
23040 acres. To make these surveys accurately, it 
was first necessary to establish the meridian lines, or 
lines running due north and south; and this, to be done 
well, must be done astronomically. At the accession 
of Mr. Jefferson to the presidency, he, for this pur¬ 
pose, and for that of establishing the geography of the 
country, appointed a ^gentleman of science and abilities 
to the office of Surveyor-general, under whose direction, 
and by whose astronomical observations, the principal 
meridians of Ohio and Indiana were established. The 
same system of survey has been continued ever since, 
and no country can exhibit greater accuracy in its inter¬ 
nal geography, or greater security to its land titles, than 
that portion of the United States which has grown out 
of the public domain. 

§ 602. 2d. The next subject in relation to United 
States lands is their disposition, whether by sale or grant. 

1. Disposition hy gift. The United States have been 
in the highest degree liberal, both to states and individ¬ 
uals, for the purposes either of charity or general utility. 
The principle and the mode of making these grants may 
be known for the whole, by examining those for the state 
of Ohio, the oldest of the states carved out of the public 
domain. 

1 The person appointed was the late Col. Jared Mansfield, who tl t<i 
the office of Surveyor-general from 1802 till 1812. 

22 ^ 


258 


PRACTICAL OPERATION OF 


§ 603. 1. In the Ohio Company’s purchase, there 
were reserved two townships for the use of a uni¬ 
versity. 

2. An entire township in Symmes’ purchase was 
granted for the purpose of an academy, or university; 

3. In the Ohio Company’s and Symmes’ purchase, 
an entire section in each township is granted for the 
purposes of Religion. 

4. One section in each township, or one thirty-sixth 
part of the whole public land in that state, is reserved 
for schools. In the Military District and the Connecti¬ 
cut Western Reserve, a large number of quarter sec¬ 
tions were also given, as an equivalent for the thirty- 
sixth part. 

5. Three per cent, of the funds arising from the sale 
of public lands is reserved for roads. 

6. The reservations of the salt springs on the Scioto 
and the Muskingum. 

7. Congress have lately made large grants to aid in 
the construction of the Ohio and Miami Canals,—about 
500,000 acres. 

§ 604. The total amount of grants made to the state 
of Ohio for school, ministerial, canal, and other pur¬ 
poses, does not fall much short of 2,000,000 of acres, 
or one-13th. part of the entire surface of the state. 

The grants in the other states have scarcely 
been less. Those for school and academic purposes 
have been the same; and nearly all of them have 
received large grants for the purposes of public im¬ 
provement. 

§ 605. 2. Disposition by Sale. As fast as the lands 
are surveyed in the manner described, and as in the 
discretion of the President, it may seem necessary, 
they are offered at public sale, at the several land offi¬ 
ces. These offices are created by act of Congress, in 
every large district of surveyed lands, for the purpose 
of convenience to the purchaser. Attached to each is a 


THE NATIONAL CONSTITUTION. 


259 


Register and a Receiver; two officers, whose duty it is, 
as their name imports, to register the sale of lands and 
receive the moneys. The sales are made—1st, by of¬ 
fering a large district of land in separate tracts, of sec¬ 
tions, half sections, quarters, and eighths,'at public sale. 
Notice of this, as to time, place, and terms, is given by 
a general proclamation from the President. It is then 
sold to the highest bidder. All the land which remains 
unsold, after being twice offered, may be entered and 
sold at private sale, for the minimum price. Formerly, 
the price was two dollars per acre, and a credit of four 
years given. This was found, however, to be produc¬ 
tive of great inconvenience, and the lands, after one pay¬ 
ment, were often forfeited. Now the price has been 
reduced to one and a quarter dollars per acre, and cash 
pai/ments. There are now forty-three land offices in 
the United States, and about 2,000,000 of acres sold 
annually, and more than that number of dollars received 
into the Treasury on account of lands sold. 

§ 606. Title of Occupants. The title of the purcha¬ 
sers of public lands is the best that can be found. 
They come in as assignees of the United States, and re¬ 
ceive a patent from the President. From the accuracy 
with which surveys are made, and the unsettled state 
of the country in which they are made, very little 
chance of a conflicting claim occurs; but if, by any in¬ 
advertence, such claim should arise and prevail, the pur¬ 
chaser is entitled to remuneration from the United 
States, and is allowed it to the extent of his claim. 

§ 607. Some other and departments of bu¬ 

siness come under the general supervision of the Treas¬ 
ury chief,--—such as the settlement of insolvent cases,un¬ 
der the insolvent laws of the United States, and awards 
under indemnifying treaties with foreign nations.— 
They do not constitute, however, any part of the regular 
business of the department, and therefore are omitted here. 

1 They have recently been subdivided into forty acre tracts. 


260 


TRAC TIC AL OPERATION OP 


WAR DEPARTMENT. 

§ 608. This department was established by act of 
Congress, August, 1789. 

The Secretary of War has a general superintendence 
over all military officers, and likewise of the Indian 
Department. His department is divided into the fol¬ 
lowing subdivisions, viz:— 

1. War Office. 2. Requisition Bureau. 3. Pension 
Bureau. 4- Indian Bureau. 5. Bounty Land Office. 
6. Office of the General Staff. 7. Adjutant-general’s 
Office. 8. Engineers’ Department. 9. Topographi¬ 
cal Bureau. 10. Ordnance Department. 11. Quar¬ 
termaster’s Department. 12. Purchasing Department. 
13. Pay Department. 14. Subsistence Department. 
15. Medical Department. 

§ 609. 1. War Office. This is the office immedi¬ 
ately directed by the secretary, in which the correspon¬ 
dence of the department is kept and conducted, and eve¬ 
ry thing of a general superintending nature performed. 
The secretary has three clerks and two messengers. 

§ 610. 2. The Requisition Bureau.^ In this office 
the requisitions of the War Department on the Treasu¬ 
ry are made out, and the salaries and contingencies of 
the department paid. It is conducted by a superinten¬ 
dent and clerk. 

§ 611. 3. The Pension Bureau. In this office all 
claims for pensions are settled, except such as arise un¬ 
der the Navy Pension Law of 1799,—that giving pen¬ 
sions to widows of militia and volunteers, and the act 
of May 15th, 1828, in re.lation to officers who served to 
the end of the revolutionary war. The number of pen¬ 
sioners is about 15,000, and the amount paid them an¬ 
nually about 1,200,000. The number, however, is 
continually decreasing, and in a few years, probably, a 
much smaller amount will be paid in pensions. In this 
office is a principal and four clerks. 

1 Force’s National Calendar, 


THE NATIONAL CONSTITUTION. 261 

§ 612. 4. Indian Bureau. To this office are refer¬ 
red all matters in respect to the Indian relations. The 
duties of this office are the correspondence in relation 
to Indian Affairs,—the management of the funds for the 
civilization of the Indians,—estimates for treaties, in¬ 
structions for the application of the money, and the 
mode of holding treaties. Accounts for the expendi¬ 
tures are passed through this office. 

§ 613. The relations of the government with the In¬ 
dian nations have become both complicated and hazard¬ 
ous. From the first formation of the government, it 
has treated with them as with independent nations; 
their right to the soil has been acknowledged, and pay¬ 
ment made to them as purchase money, annuities 
granted, and various collateral advantages stipulated in 
their favor. At the same time that this was done, 
many tribes of them have been located entirely within 
the states, and over whose soil the jurisdiction of the 
states has extended. Hence, the hazard of a conflict 
between the independent rights of the Indians and the 
jurisdiction of the states is constantly recurring. Of 
the constitutional points upon this subject, we have 
spoken in another place. 

§ 614. The practical action of the government with 
respect to the Indians, may be stated under two heads: 

1. Regulation of trade and intercourse with them. 

2. Civilization of them. 

§ 615. Of the regulation of trade and intercourse 
with them. The first act of intercourse with them is 
the holding treaties with them, and settling boundary 
lines. The United States have always held treaties 
with them, and acknowledged them as, in many respects, 
independent nations, and have settled the respective 
boundaries of the United States and them. It is there¬ 
fore too late to question this point of intercourse. By 
section 2d, of the act of March, 1802, all persons who 
shall go within the Indian boundary, to hunt, or other- 


262 


PKACTICAL OPERATION OF 


wise destroy game, or shall drive or convey any stock 
of cattle to range on any lands secured by treaty to the 
Indian tribes, are subject to fine and imprisonment. So, 
likewise, if any one go into the Indian country, and 
there commit robbery, or other crime, which would be 
punishable within the United States, he is punishable 
also w'ith fine and imprisonment: and so, if one commit 
murder on an Indian, the offender shall suffer death. 
No one is permitted to reside in the Indian country, or 
purchase any thing of the Indians without a license. 

§ 616. No person is allowed to purchase, lease, or 
take any other conveyance from an Indian, of any land 
■within the bounds of the United States, except it be in¬ 
cluded by some treaty made by the United States wuth 
the Indians: and it is a misdemeanor for any one not 
employed under the authority of the United States, di¬ 
rectly or indirectly to treat with any nation or tribe of In¬ 
dians, for the title or purchase of any land held by them. 

§ 617. The Superior courts in each of said terri¬ 
torial limits, and the Circuit and other courts of the 
United States, of similar jurisdiction in criminal causes, 
are invested with full powder and authority to hear and 
adjudicate all such crimes and offences. 

§ 618. By the same act, it is lawful for the military 
force of the United States to apprehend any person who 
may be found in the Indian country, over and beyond 
the boundary line; that is, intruders. 

§ 619. ‘For the purpose of carrying on a proper 
trade with the Indians, the superintendents of Indian 
afiairs, and the agents under the direction of the Pres¬ 
ident, are authorized to grant licenses to trade with the 
Indians. These licenses are granted to citizens, and to 
none others. Those who take licenses are obliged to 
enter into penal bonds, in sums proportioned to their 
capital, conditioned for the due observance of the laws 
regulating trade and intercourse among the Indians. 

I Act of May 6, 1822. 



THE NATIONAL CONSTITUTION. 


263 


§ 620. All purchases for and on account of Indians, 
for annuities, presents, &c. &c., are made by Indian 
agents and governors of territories, acting as superin¬ 
tendents. In all trials in which an Indian and a white 
man are parties, the burden of proof shall rest upon the 
white man, in every case in which an Indian shall make 
out a presumption of title. For the purpose of superin¬ 
tending the Indian intercourse, an officer is appointed by 
the President, called a Superintendent of Indian Affairs. 

§ 621. ^Licenses to trade with the Indians are not 
granted to any but citizens. Foreigners, who go into 
any of the Indian territories within the limits of the 
United States, are subject to fine and imprisonment. 

§ 622. 2. Civilization of the Indians. For this ob¬ 
ject, the United States have from time to time used 
various means. To promote civilization among the 
friendly Indians, and to secure the continuance of their 
friendship, it was enacted, that the President of the Uni¬ 
ted States might furnish them with domestic animals, 
implements of husbandry, goods, and money, at his dis¬ 
cretion,- and might also appoint such persons, from time 
to time, to reside among them as he may think fit. 

§ 623. The President^ was also autW-ized to take 
such measures as he may think expedient, to prevent 
the vending or distributing spirituous liquors among the 
Indians. 

§ 624. In addition to these enactments, Congress, by 
the act of March 3d, 1819, authorized the President to 
employ persons of good moral character to instruct them 
in the mode of agriculture suitable to their condition, and 
for teaching them reading, writing, and arithmetic, to 
be governed by such rules and regulations as the Pres¬ 
ident may prescribe. 

§ 625. The United' States have expended much 
money and employed many agents upon the objects 
contemplated by these provisions, but little progress has 
I Act of 1816. * Act of March, 1802, Sect. 21. 


264 


PRACTICAL OPERATION OF 


ever been directly made in the civilization of the Indians. 
The frontier tribes have always retained their original 
barbarism. The Cherokees, Choctaws, &lc., who have 
continued within the bosom of the white settlements, 
have made some little progress in the arts of civilized life. 

§ 626. 5. Bounty Land Office. ‘ This is an office in 
which claims for military bounty lands, originating in 
the Revolutionary and late war are examined, and from 
which military bounty land warrants issue. 

§ 627. 6. Office of the General Staff. This is the 
office of the Commander-in-chief. His duty is to com¬ 
mand the army, to arrange the military force in the best 
manner, to superintend the recruiting service; to order 
courts-martial, and decide in ail cases except those in 
which life is concerned, or the commission of an officer. 

§ 628. 7. Adjutant-general’s Office. In this office 
are deposited the records which refer to the personnel 
of the army from the earliest period of the government. 
In this office, military appointments and commissions are 
made out and registered; enlistments recorded; monthly 
returns of the troops received and preserved. All or¬ 
ders from Head Quarters, and all regulations and gen¬ 
eral orders of the War Office, are communicated through 
the Adjutant-general. In this office, the annual returns 
of the militia, arms, accoutrements, &.c, are deposited, 
as likewise the appointments and commissions of the 
officers of the militia of the district of Columbia are re¬ 
gistered and distributed. 

§ 629. 8. Engineer Department. The chief of the 
Engineer Department is stationed at the seat of govern¬ 
ment, and directs and regulates the duties of the corps 
of engineers, and of such topographical engineers as 
may be attached to it; he is also inspector of the Mili¬ 
tary Academy, and charged with its correspondence.^ 

§ 630. 9. Topographical Bureau. This Bureau has 
charge of all topographical operations and surveys for 
* Force’s National Calendar. ^Ibid. 


THE NATIONAL CONSTITUTION. 


265 


military purposes, and for internal improvement, and of 
the maps, drawings and documents in relation to those 
duties. 

§631. 10. Ordnance Department. The senior officer 
of ordnance is stationed at the seat of government, and 
charged with the general superintendence of his duties. 

§ 632. 11 . Quarter-master"^s Department. The ob¬ 
ject of this department is to insure the supplies and 
facilitate the movements of the army. The Quarter¬ 
master-general is stationed at Washington, and has, un¬ 
der the direction of the Secretary at War, the exclusive 
control of all the quartermasters, and assistant quarter¬ 
masters, and of all the officers and agents acting for the 
department. It is the duty of the Quartermaster-gen¬ 
eral and his agents to provide quarters and transporta¬ 
tion for the troops, and transportation for military stores, 
camp equipage, provisions, &c. &:-c.; provide for open¬ 
ing and repairing roads, bridges, &c. He purchases all 
forage, fuel, stationary, &-c.; provides all horses, wag¬ 
ons, boats, and materials for building barracks, hospitals, 
stables, and bridges. Officers of the Quartermaster’s 
department make all contracts for the supplies of the 
army, and have the right to make payment for all sup¬ 
plies, which by regulation they have the right to con¬ 
tract for. No officer is allow'ed to be concerned, directly 
or indirectly, for himself or others, in any contract with 
any department of the government, nor in the purchase 
of any claim on government. Whenever private 
grounds, building, or property are occupied by the 
troops of the United States, the Quartermaster must 
make reasonable compensation to the proprietor. 
Every officer in the Quartermaster’s department gives 
bonds to the United States, conditioned for the faithful 
performance of his duty. 

§ 633. Purchasing Department. The Commissa¬ 
ry-general of Purchases purchases* on’the orders and 
* Force’s National Calendar. 

23 


266 


PRACTICAL OPERATION OF 


estimate of the war department, all clothing, camp 
equipage, saddles, and all articles required for the pub¬ 
lic service of the army of the United States, except 
such as are ordered to be purchased by the Ordnance, 
Quartermaster’s, Subsistence, and Medical Depart¬ 
ments. 

§ 634. 13. Pay Department, The Paymaster-gen¬ 
eral is stationed at the seat of government, and is char¬ 
ged with the military responsibilities of this department 
in all its details. The subordinate officers of the pay 
department are subject only to the orders of the Pay¬ 
master-general and Secretary at War. The troops are 
paid every two months, or as near it as is p>ossible. 

§ 635. 14. Subsistence Department. ' The Commis- 
sary-general of Subsistence makes estimates of expen¬ 
ditures for his department, purchases subsistence for the 
army, makes payment to contractors, arranges his 
assistants, &c. 

§ 636. 15. The Surgeon-general —is stationed at 
Washington, and is the director and accounting officer 
of the Medical Department. He issues all orders and 
instructions relative to the professional duties of the 
medical staff, and receives such reports from them as is 
necessary to the proper performance of their duties. 
He receives quarterly reports of the sick from each 
officer, with such remarks as may explain the nature of 
the diseases of the troops and the practice adopted. He 
receives from every surgeon and assistant surgeon hav¬ 
ing charge of public property, semi-annual returns of 
the same, and also, annual requisitions for the supplies 
required for each hospital. It is his duty to make all 
such returns to the Secretary at War as may be neces¬ 
sary to explain all the concerns of the department un¬ 
der his charge, with such remarks relative to the 
improvements in practice and police, clothing, &-c., of 
the army, as may’ seem to be required for the preserva¬ 
tion of health, and the good of the public service. 


THE NATIONAL CONSTITUTION. 


267 


NAVY DEPARTMENT. 

§ 637. The Navy Department was not created until 
some time after the departments of State, War, and 
Treasury were in efficient operation. The office of 
Secretary of the Navy was erected by the act of the 
30th of April, 1798. He has a general superinten¬ 
dence of the naval establishment, and issues all orders 
to the navy. lie is by usage a member of the cabinet, 
and holds his office at the will of the President. The 
secretary is assisted by eight clerks and two mes¬ 
sengers. 

§ 638. By the act of February 7th, 1815, a Board of 
Navy Commissioners was established. The board con¬ 
sists of three post-captains, who have power to adopt 
such rules and regulations for the government of their 
meetings as they may think expedient; and the board, 
so constituted, is attached to the office of the Secretary 
of the Navy, and under his superintendence discharges 
all the ministerial duties of said office relative to the 
procurement of naval stores and materials, and the con¬ 
struction, armament, equipment and employment of ves¬ 
sels of war, as well as all other matters connected with 
the naval establishment of the United States. And the 
board appoint their own secretary, who keeps a record 
of their proceedings, subject at all times to the inspec¬ 
tion of the President of the United States and the Sec¬ 
retary of the Navy. 

§ 639. Six clerks, a draughtsman, messenger, and 
superintendent of building are employed by the Board 
of Navy Commissioners. In addition to the above 
officers, attached to the department and to the navy 
officers, there are twelve Navy Agents, seven Naval 
Storekeepers, and eight Naval Constructors. 

POST-OFFICE DEPARTMENT. 

§ 640. The Post-office Department has been in oper¬ 
ation since the first organization of the government; 


268 


PRACTICAL OPERATION OF 


but the act which gave it the present form and constitu* 
tion was passed April 30, 1810. By that act the Gen¬ 
eral Post-office is placed under the direction of a Post- 
niaster-general. He has two assistants, and such clerks 
as are necessary to perform the business of his office. 
He establishes post-offices, and appoints such post¬ 
masters, as he may deem ex])edient, on routes estab¬ 
lished by law. He gives all persons employed in his 
department instructions upon their duty. He provides 
for the carriage of the mail on all such post-routes as are 
established by law. When he thinks proper, he may 
designate the route, where there are more than one, 
between places designated by law for a post-road. He 
requires the accounts, vouchers, and balances of the 
several postmasters quarterly. He pays all the ex¬ 
penses arising from the conveyance of the mail, the col¬ 
lection of the revenue of the department, and other ex¬ 
penditures; he prosecutes offences against the depart¬ 
ment; he renders a quarterly account of the receipts and 
expenditures to the Secretary of the Treasury; he super¬ 
intends all the business of the department, and in case 
of death, resignation, or removal, is succeeded by the 
senior assistant till a successor is appointed. 

§ 641. The Postmaster-general, and all in the gen¬ 
eral post-office, as well as all who have the care, cus¬ 
tody, or conveyance of the mail, must take an oath 
to perform all the duties required of them, and ab¬ 
stain from every thing forbidden by them, in relation to 
the post-offices and post-roads within the United States. 

§ 642. To place the conveyance of the mail entirely 
under the supervision of the Postmaster-general, all pri¬ 
vate mails are forbidden, and all persons are prohibited, 
directly or indirectly, from conveying letter's from place 
to place.‘ 

§ 643. The expenditures of the Post-office Depart¬ 
ment are paid from its receipts in postage. In this re- 
* Act of April 30, 1810, Section 16. 


THE NATIONAL CONSTITUTION. 


269 


spect this department differs from all the others. Its 
funds do not make up a part of the general revenue of 
the country, nor are its expenses paid from it. Its re¬ 
ceipts and its expenditures are kept within itself. In 
this manner, as its funds extended, new mail routes 
have been established; the mail greatly expedited on 
the old ones, and their frequency increased. Indeed, 
the great increase of postage and post-routes show, 
more than any other, the augmentation of numbers, busi¬ 
ness, wealth, and intelligence of the people. 

§ 644. The Postmaster-general is assisted by Uco 
assistants, an examiner, register, solicitor, three book¬ 
keepers, and sixty-two clerks} 

§ 645. The business of the office is divided into three 
divisions; at the head of the 1st is the First Assistant; 
of the 2d the Second; of the 3d, the Chief Clerk. 

§ 646. 1. Of the First Division, Under this divi¬ 
sion are included the Book-keeper’s Office, Solicitor’s 
Office, Pay Office, Examiner’s Office, and Register’s 
Office. The senior assistant is charged with duties ap¬ 
pertaining to the Finance Department; with the super¬ 
vision of cash disbursements, with the comptrolling of 
incidental expenses, when audited by the Chief Clerk; 
with examining and reporting to the Postmaster-general, 
when deficient, the deposites of the weekly, monthly, 
and quarterly proceeds of the depositing post-office. 

§ 647- Book-keepefs Office. The principal book- 
keeper^ is charged with five legers, containing 3000 
postmasters’ accounts, the contractors’ accounts for the 
same region, as well as the general accounts of the de¬ 
partment, a journal and abstract of the day-book for 
the same district. 2- The second book-keeper is, in 
like manner, charged with four legers, containing near 
3000 postmasters’ accounts, the contractors’ accounts 
for the same section, a journal and a day-book, as be¬ 
fore. 3. The third book-keeper is charged with four 
1 Force’s National Caleajdar, 137. 2 Idem. 136. 

23 ^ 


270 


PRACTICAL OPERATION OP 


legers, containing 2500 postmasters’ accounts, and other 
accounts and books as before. 

§ 648. Solicitor's Office. The solicitor has the final 
settlement of all accounts, and the collection of all bal¬ 
ances due, the commencement of suits, and the cor¬ 
respondence with the United States Attorneys and 
others in relation thereto. Also, the statement of post¬ 
masters’ accounts, and the correspondence on questions 
of difference with them. 

§ 649. Pay Office. It is the duty of the pay-clerk 
to examine the accounts of all contractors for the trans¬ 
portation of the mail; ascertain the annual and quar¬ 
terly payments to be made on their contracts; issue the 
drafts in their favor, on the postmasters belonging to 
their routes; to keep the pay-books of the pay due, of 
the sums drawn from the post-offices, and of the drafts 
and checks transmitted, and furnish certificates of the 
sums required to the assistants. He is also agent for 
the payment of the officers and others of the depart¬ 
ment; he has four assistant clerks. 

§ 650. The Examinees Office. The chief examiner 
is charged with the opening, auditing, and examining 
of all postmasters’accounts; notifying and reporting all 
delinquents; with notifying postmasters of the errors 
in their accounts; receiving and depositing remittances, 
and returning those not receivable. 

§651. The Registers Office. The chief register pre¬ 
pares all the accounts of the department for the Treasu¬ 
ry, with their proper vouchers, with a general account 
current of the transactions of the department, and su¬ 
perintends the copying and adjusting the accounts for 
the Treasury. The register is assisted by three as¬ 
sistants and three clerks. 

Second Division. 

§ 652. This division is under the direction of one of 
the Assistant Postmasters-general, His duties are to 


THE NATIONAL CONSTITUTION. 


271 


take charge of the establishment and regulation of post- 
offices: the appointment, supervision, and instruction of 
postmasters; the security of remittances by mail; the 
examination of mail routes, to determine the location of 
new offices; the reporting of applications and com¬ 
plaints to the Postmaster-general. 

§ 653. Office of Appointments and Instructions. This 
is attached to the second division, and has nine clerks; 
of these,ybwr are corresponding clerks, whose duties con¬ 
sist in the examination and endorsement of memorials, 
letters, &c., &c. One clerk, whose duty it is to prepare 
the letters of appointment, discontinuance, bonds, &c., 
&/C. One clerk, who writes notices of appointments, 
change, (Si-c. One letter-book clerk, who records and des¬ 
patches the letters from this office; and two other clerks. 

§ 654. Dead Letter Office. This office is under a 
superintendent and four clerks. The superintendent 
examines dead letters containing articles of value; en¬ 
ters and numbers them, and transmits them to the own¬ 
ers: in other cases, he numbers them, enters them, and 
files them. He also corresponds on the subject. Let¬ 
ters that have no enclosures are burnt. 

§ 655. Office of 31 ail Depredations. To this office 
is assigned the business of attending to all cases of mail 
losses and depredations, &-c., &/C. 

Third Division. 

§ 656. The Chief Clerk is charged with the duties 
of this division. 

Office of 3Iail Contracts. The business done in this 
branch is always prepared, and submitted to the Post¬ 
master-general for his examination and decision. There 
ViVe four corresponding clerks in this department; one 
contract clerk; one route-hook clerk; two letter-hook clerks; 
one fine clerk. 

To the Post-office Department are attached two 
watchmen, and three messengers. 


272 


PRACTICAL OPERATION OF 


MINT DEPART3IENT. 

§ 657. The Mint of the United States was establish¬ 
ed by the act of April 2cl, 1792. 

. The officers of the Mint are a Director, Chief Coiner, 
Assayer, Engraver, Melter and Refiner,^ and a Trea¬ 
surer, and as many clerks and workmen as are neces¬ 
sary. The duty of the Director is to superintend and 
manage the business, and all the officers and persons 
employed in it.' The Assayer assays all the metals 
which require it, and delivers them to the chief coiner. 
The Chief Coiner corns them in such quantities as the 
director requires. The Engraver sinks and prepares 
the dies for the coin, with the proper devices and in¬ 
scriptions. The Melter and Refiner take charge of all 
copper, and silver or gold bullion, delivered out by the 
Treasurer after assaying, and reduces the same into 
bars and ingots for the rolling mills, and then delivers 
them to the coiner or treasurer, as the director deems 
expedient. The Treasurer receives and gives receipts 
for all metals which may be lawfully brought to the Mint 
to be coined; and for ascertaining their quality, he de¬ 
livers from every parcel so received a number of grains 
to the assayer, who assays such of them as require it. 

§ 658. Every officer and clerk of the Mint, before he 
enters opon the duties of his office, takes an oath or 
affirmation, before some judge of the United States, 
faithfully and diligently to perform the duties thereof. 
The Assayer, Chief Coiner, Melter and Refiner, ^nd 
Treasurer, give bonds to the Secretary for the faithful 
and diligent performance of their several duties. 

§ 659. Every person is allowed to bring gold and 
silver bullion to the Mint to be coined, and it is assayed 
and coined as soon as practicable after it is brought; 
If it is of the standard of the United States it is coined 
free of expense; but the treasurer is not obliged to re- 
* Act of March 3d, 1795. 


THE NATIONAL CONSTITUTION. 


273 


ceive silver in less quantity than two hundred ounces, 
nor gold less than twenty ounces, when less than the 
standard value. When it is less than the standard 
value, it is coined at the expense of the owner. ^ 

2. OF THE LEGISLATURE. 

§ 660. The operation of the Legislative branch of 
the government consists in the exercise of the law- 
malcing power. Congress, as we have seen in the 1st 
Article of the Constitution, consists of two branches, 
the House of Representatives and the Senate. The 
organization of these bodies respect, 1st, their officers; 
2d, their committees; and 3d, their rules. 

§661. 1st. Of their officers; these are, the presiding 
officer (in the House, the Speaker, and in the Senate, 
the Vice-President),—the Clerk,—Sergeant-at-Arms, 
and Doorkeeper. When the House meet at the seat 
of government, they usually appoint the oldest member 
present Chairman; after that, they proceed to the elec¬ 
tion of a Speaker, a majority of all the votes present 
being necessary to a choice; after this they elect a 
Clerk,—Sergeant-at-Arms, and Doorkeeper. When these 
officers are elected, and the members sworn, which they 
are by the Clerk, the House is said to be organized and 
ready to do business. In the Senate, the Vice-1 res¬ 
ident takes the chair; or, if not present, a president pro 
tern, is chosen: then the Clerk and other officers arc 
chosen, as in the House. 

§ 662. The power and duties of the Speaker are 
to preside and keep order in the House;—to appoint 
committees,^ unless othe^*wise specially directed by the 
Plouse;—to sign all acts, addresses, and joint resolu¬ 
tions of, and all writs, warrants, and subpoenas, issued 

* Congress have, by an act passed at the session of 1834-5, created 
branches of the Mint in the southern states, where the gold is chiefly 
found. 

2 Jefferson’s Manual, 157. 


274 


PRACTICAL OPISKATION OF 


by order of the House, shall be under his hand and seal, 
attested by the Clerk; he has power to clear the galle¬ 
ries when there is disturbance; he puts all questions to 
the House, and in case of ballot, is entitled to vote; in 
other cases he is not, unless the House is equally di¬ 
vided, or his vote given in the minority would make it 
equal. 

§ 663. The duty of the Clcrk^ to make, print, and de¬ 
liver to each member, at the commencement of every 
session of Congress, a list of the reports which it is the 
duty of any officer to make to Congress, referring to the 
page of the journals in which it is contained; it is his 
duty to keep the journals of the House, and at the end 
of each session to send a printed copy thereof to the 
Executive, and to each branch of the Legislature of 
every state; he must note all questions of order, and 
place them at the end of the journal of each session. 

§ 664. The duty of the Sergcant-ai-Arms^ is to attend 
the House during its session, to execute its commands, 
and all such process as shall be directed to him by the 
Speaker. 

§ 665. The duty of Doorkeeper is explained by his 
> title. 

§ 666. The chief business of legislative bodies is 
done by their committees ,—to whom all matters of busi¬ 
ness, requiring investigation and consideration, are first 
referred; and by whom a report is made upon the sub¬ 
ject, which report is the topic of consideration with the 
House. Committees in the House are appointed by the 
Speaker, in the Senate by ballot. In the House they 
consist of seven members each; in the Senate oijive. 

§ 667* The committees are formed by arranging all 
the chief subjects of importance into classes, with an 
appropriate title, and to each appointing a separate com¬ 
mittee. These subjects and classes are enumerated in 
the rules and orders of the House, and, with little varia- 
1 Jefferson’s Manual, 173. 2 idem. 165. 


THE NATIONAL CONSTITUTION. 


275 


tion, are the same in both. By the 7th Sect, of the 1st 
Art. of the Constitution, it is provided, that all bills for 
raising revenue shall originate in the House of Repre¬ 
sentatives; hence the House have a committee which 
the Senate have not, styled The Committee of Ways and 
Means. This committee is one of the most important 
parts of the machinery of legislation, and of the govern¬ 
ment itself; for in it are investigated all the moneyed 
affairs of the nation, and by it are digested and reported 
the various plans of revenue and finance for the sup¬ 
port and credit of the government. 

§ 668. The principal committees in either House are, 
the committees on Foreign Relations, on Commerce, 
on the Judiciary, on Military Affairs, &-c. 

§ 669. These committees, with several others, not 
enumerated, are called standing committees: besides 
these there are select committees^ appointed for specific 
objects, and only for the particular occasion; these are 
appointed, either from the great importance of the topic 
under consideration, or the particular desire of mem¬ 
bers having them in charge. Besides these, the whole 
-House, at times, resolves itself into a committee, called 
the committee of the tvkole. The object of this is to 
obtain greater freedom of debate: when in committee 
of the whole, the speaker does not preside, but a chair¬ 
man appointed for the occasion; nor do the rules of the 
House govern, but simply order is preserved, as in 
common deliberative assemblies. When the committee 
of the whole have finished their discussions, they rise, 
and like other committees, report to the House, the 
speaker resumes the chair, and the members vote in 
the House upon the acceptance or rejection of the re¬ 
port. In this manner important subjects are more 
freely discussed, and more deliberately decided upon 
than if they passed merely through the !^ouse. 

§ 670. The regular and constant business of the 
House is concocted first in the standing committees, 


276 


PRACTICAL OPERATION OF 


for example, the appropriation bills for support of gov¬ 
ernment are drawn up in themj bills for claims, for the 
sale and grant of lands, fcc. 

§ 671. The order of business is as follows,* after 
Congress is organized, the President’s Message is re¬ 
ceived and read, with the accompanying documents; 
then such part of it as relates to our intercourse with 
foreign nations, is referred to the committee on foreign 
affairs: so much as relates to the army, military aca¬ 
demy, &/C. &c. to the committee on military affairs, and 
so on of each subject: these committees examine the 
recommendations made by the President and the re¬ 
spective departments, and report such bills as they think 
necessary and proper: on these Congress decide by ac¬ 
cepting or rejecting them. 

§ 672. If any member wish to obtain the action of 
the House upon a particular subject, he must do it in 
one of the following modes:—1st, by resolution; thus, 
if it is desired to obtain the opinion of the House upon 
a particular point, a member introduces a resolution, 
“Resolved so and so;” upon this resolution the House 
act, and its sentiment upon that subject is immediately 
obtained; again, if it is desired to obtain the report of 
a committee, or a bill upon a given subject, a resolution 
is introduced, directing the committee to report, or 
otherwise, and the House at once pass it or not, at its 
discretion; calls for information upon the departments 
are likewise made in this manner. 2d. Another mode 
is that of obtaining leave to bring in a bill; when a sub¬ 
ject does not regularly come before the committee, or 
the instant action of the House is required, this is some¬ 
times adopted. Regular bills are brought in by the 
committees, and for a member to bring in a bill, the 
House must grant leave. 

§ 673. The order of daily business is, 1st. As soon 

as the journal of the preceding day is read,^ the Speaker 

><• 

I Jeflferson’s Manual, Rule 16, of the House. 


THE NATIONAL CONSTITUTION. 


277 


calls for petitions from the members of each state and 
territory;' when these petitions are presented and dis¬ 
posed of, reports from the standing and select commit¬ 
tees are called for. and disposed of; to these subjects, 
and to that of resolutions, only one hour a day is allowed. 
After this is done, and the Speaker has disposed of com¬ 
munications on his table, he proceeds to call the order 
of the day, which consists of unfinished business, in 
regular order, and subjects particularly set apart for 
that day. 

§ 674. In carrying a bill through the House, there 
are certain steps which must be taken before the final 
decision is made; and there are certain rules which 
must always be observed while a subject is under dis¬ 
cussion :—Thus, every hill must be read‘s three times 
previous to its passage; and each reading must receive 
the formal sanction of the House. No bill can be twice 
read on the same day, without special leave of the House. 

§ 675. The first reading of a bill is for information, 
and if opposition be made to it, the question is put by 
the Speaker, Shall this bill be rejected?” If no oppo¬ 
sition be made, or this question is rejected, the bill goes 
to its second reading without a question. On the second 
reading of the bill, it may. be either engrossed or com¬ 
mitted; if committed, the House determines whether it 
shall be a select committee, or a standing committee, or 
a committee of the whole: if to a committee of the 
whole, the House determine on the day. If the bill be 
engrossed, then the House appoint a day upon which it 
shall be read a third time: after the bill is read a third 
time, the question is upon its final passage. 

§ 676. When a bill shall pass, the Clerk must certify 
it, noting the day of its passage at the foot. There are 
various rules to be observed during the discussion, but 
we shall notice only those which have a direct effect in 
facilitating or retarding the business of the House. 

‘Jefferson’s Manual, Rule 17. *Idem. 

24 


278 


PRACTICAL OPERATION OF 


§ 677. The chief of these are the rules in respect to 
motions, by which the business before the House is fre¬ 
quently very much accelerated or retarded, even against 
the wishes of the majority. The * principal motions, and 
the order of their precedence, is as follows: the motion 
to adjourn ,—to lie on the table ,—for the previous ques¬ 
tion ,—to postpone to a day certain, —to commit or amend, 
—to postpone indefinitely. The motion to adjourn takes 
precedence of all other questions; after 4 P. M. it is al¬ 
ways in order. The motion to lay on the table has 
next precedence; this motion, if it succeeds, gives the 
subject the go-by, till it is formally recalled by a motion 
to take it up; this, unless the majority for the measure 
is strong, is difficult to be done. The previous question 
is a formidable motion in the hands of a majority; it can 
only he called for by a majority, and precludes all de¬ 
bate. It is used by the majority to press a question 
when measures are taken by the minority to delay and 
protract the action of the House upon the subject in 
hand; or when the debate becomes vexatious, or improp¬ 
er,—or to get rid of discussion. 

§ 678. Upon all questions where there is any oppo¬ 
sition made, the yeas and nays are taken; that is, the 
members vote alphabetically, in the affirmative or nega¬ 
tive, upon the question before them. The yeas and 
nays may. always be demanded by one-fifth of the mem¬ 
bers present. 

§ 679. The rules and usages observed by parlia¬ 
mentary bodies are all favorable to deliberate and pru¬ 
dent legislation, and to the just rights of the minority. 
If legislation could be hurried oft" as rapidly as ordinary 
business, the majority would do many acts their delib¬ 
erate reason would disapprove, and be impelled to much 
oppression upon the minority. As it is by means of 
rules and restrictions, the forms, if not the reality, of 
justice and decorum are observed. 

> Jefferson’s Manual, Rule 29. 


• THE NATIONAL CONSTITUTION. 


279 


§ 680. The rules for the Senate are nearly the same 
with those of the House; indeed substantially, all par¬ 
liamentary bodies in this country observe the same 
rules. 

§ 681. After a bill has passed, it is carefully en¬ 
grossed by the Clerk, and sent to the other House by a 
proper person. When a bill has passed both Houses, it 
is duly enrolled on parchment, by the Clerk of the House 
of Representatives, or Secretary of the Senate, before 
it is presented to the President. After they are en¬ 
rolled, they are examined by a joint committee of the 
Senate and House of Representatives, who carefully 
compare the enrollment with the engrossed bills, and cor¬ 
recting any errors that may be discovered in the en¬ 
grossed bills, make their report forthwith to the Houses. 
After examination and report, each bill is signed in the 
respective houses, first by the Speaker of the House of 
Representatives, then by the President of the Senate, 
and after being thus signed, is presented by the commit¬ 
tee to the President of the United States for his appro¬ 
bation; it being endorsed on the back of the enrollment 
in which House the same originated. No bill that has 
passed one House is sent to the other for concurrence 
within the three last days of the session. 

§ 682. The signature of the President is affixed to 
all bills which meet his approbation, and this completes 
the last act of practical legislation. When bills are thus 
completed, they make a part of the laws of the nation, 
and from the day mentioned in the bill, take effect ac¬ 
cordingly. 

3d. of the judiciary. 

§ 683. By Art. 3d, Sect. 1st, of the Constitution, the 
Judicial power of the United States is.vested in a Su¬ 
preme Court, and such inferior courts as Congress may 
appoint. By Sect. 8 of Art. 1, Congress have power 
to make all laws necessar^j and proper to carry these 


280 


PRACTICAL OPERATION OF 


provisions into execution. Accordingly, in September, 
1789, Congress passed the Judiciary Act, which has 
since been frequently amended, organizing the Supreme 
and Inferior Courts, and prescribing the mode of action. 

§ 684. The Courts established are, first, a Supreme 
Courts consisting of a chief-justice and six associates; 
2d. A District Court, consisting of one judge for each 
district, of which there are many; 3d. A Circuit Court, 
consisting of one judge of the Supreme Court, and the 
district judge in connection. 

§ 685. Under other heads, we have seen what was 
the jurisdiction of these courts: we are here to learn in 
what mode they operate, and what f unctions they perform. 
These may be considered, 1st, as to the objects which 
courts effect; 2dly, as to the means of effecting them; 
and 3dly, as to the mode by which their decisions are 
carried into execution. 

§ 686. 1. As to the objects of Courts of Justice. 
The general object of all courts is to administer justice.^ 
It is to enforce right, and punish or repress wrong. 
Thus, for example, if James has a right to a field, which 
Paul has taken and keeps, James may appeal to -the 
Court, and that will give judgment against Paul, and 
restore the field to. James; or if Paul being rightfully in 
possession of the field by a lease for cultivation, com¬ 
mits waste upon it by cutting timber trees, James may 
appeal to the court; and it will restrain Paul from cutting 
them; or again, if Paul steals the goods of James, the 
court will Paul and restore the goods. Thus, as 

the general object of the Executive Department is to 
execute the laws, so that of the Judiciary is to pass judg¬ 
ments upon infringements of them, and carry these 
judgments into effect. 

§ 687- The objects of the United States Judiciary 
are, in conformity to the United States Laws, of the 
fame general nature, but different in extent and relations 
»3 Blackst. 24. 


THE NATIO>*AL CO^'STITUTIOZf. 


281 


from those of the states. These have, however, been 
defined chiefly under the jurisdiction of the United 
States Courts. The objects of the State Judiciaries are 
the enforcement of municipal rights of every description, 
and the punishment of state ofiences; while the United 
States Judiciary concerns chiefly the enforcement of 
municipal rights only of a certain character, ofiencea 
against the laws of the United States, and maritime 
law. 

§ 688. 2. But to enforce rights, and punish crimes, 
courts must have the means to bring the parties before 
them, and to ascertain the truth of the case. These 
means consist, 1st, of the officers of the court; and 2dly, 
of process. 

§ 689. Ist. The ofiicers of the United States Courts 
consist of clerks, marshals, attorneys and reporters. 
The duty of clerks is to keep, in books prepared for that 
purpose, an exact record of each case which comes be¬ 
fore the court, with all the proceedings which have 
taken place upon it at each successive stage. This 
record is kept carefully in the public ofiices, and is of 
such solemn import, that when a cause has once been 
decided, it cannot be impeached, but is conclusive against 
the parties to it, their heirs and successors forever. By 
Sect. 7th of the Judiciaiy Act, the Supreme Court and 
the District Courts have power to appoint their own 
clerks, and the clerk of the District Court is also clerk 
of the Circuit Court. 

§ 690. The Marshal is what is termed the minis¬ 
terial officer of the court, that is, he ministers or acts 
for the court in all its executive proceedings. Thus, 
if the court directs a person to be brought before 
them, the marshal sees it done by serving the or¬ 
der of the court upon him, and if he will not come 
voluntarily, compelling by force; for which purpose 
he can call upon all bystanders and others for as¬ 
sistance. 

24 * 


282 


PRACTICAL OPERATION OF 


§ 691. The general duty of the marshal is to attend 
upon the District and Circuit Courts when sitting, and 
upon the Supreme Court in the district in which that 
court shall sit; and to execute all lawful precepts di¬ 
rected to him, and issued under the authority of the 
United States. The marshal has power to appoint 
deputies, who are removable from office at the pleasure 
of the judges of the District and Circuit Courts. For 
the faithful performance of his duties he is bound, with 
securities, in a large sum. In all cases where the mar¬ 
shal or his deputy is a party, the writs or precepts are 
directed to some disinterested person, who has power 
to execute them. The marshal sometimes has other 
duties assigned him by law,—but his general and 
proper duty is that of executing the process of the 
court. 

§ 692. Attorneys at Law are persons supposed to be 
learned in the law, and as such are appointed by the 
courts to practice law, and conduct suits Within their 
jurisdiction. As they are appointed by the courts, they 
are removable at the pleasure of the courts. They are 
considered officers of the courts, and amenable to them. 
The requisites to license a person to practice law in 
the several states, are enacted by statute: in the United 
States Courts, any one may practice who can practice 
in the courts of highest judicature in the state where he 
resides. 

§ 693. A reporter is likewise an officer of the court. 
He is some one licensed by the court to report and 
publish their judicial decisions and opinions. Doubt¬ 
less, any one can report the proceedings of a court of 
justice, but they would not have weight or authority 
unless done under the sanction and inspection of the 
courts. Reporters are now appointed by nearly all the 
courts of highest jurisdiction in the several states. These 
reports are used as precedents and authorities upon which 
i Judiciarv Act. Sect. 27. 


THE NATIONAL CONSTITUTION. 283 

to decide similar cases. They are constantly cited at 
the bar, and make up the largest portion of a lawyer’s 
library. A learned judge has said, that “ the first and 
greatest lesson a judge has to learn is to abide by pre¬ 
cedents.'^'' The reports of decisions in the Supreme 
Court of the United States have acquired an immense 
authority, both from its being the tribunal of ultimate 
resort, and from the learning and ability of its judges.- 

§ 694. Of Process. ^Process is the method taken 
by the law to compel a compliance with its demands: 
as such it comprehends all the written orders of the 
courts, from the commencement of a suit till its termi¬ 
nation by execution of the judgment. 

§ 695. Process is of two kinds; Mesne and Fmal. 
Mesne Process is all that process which is issued prior 
to the judgment,—such as writs to bring tho parties 
before the courts, summon juries, witnesses, &-c. Final 
Process is all that process necessary to carry the judg¬ 
ment of the court into execution, as the writ of capias 
ad satisfaciendum^ to take the body for satisfaction, and 
the writ levari facias^ to levy on lands. The distinc¬ 
tion between mesne and final process being made by 
the judgment, all before that being Mesne, and all after 
Final Process. 

§ 696. The terms -writ and process are in the Ameri¬ 
can practice nearly confounded, but in England the 
writ means what is called the original, or the writ issued 
to commence, or found an action at law. Here a ivrit 
is a mandatory letter from the court, directing parties 
and persons to be brought before it, and things to bo 
done. 

§ 697. By the act of May, 1792,^ all writs and pro¬ 
cesses issuing from the Supreme or Circuit Court shall 
hear teste, that is, be signed and issued as of the chief 
justice; and all writs and process issuing from the Dis¬ 
trict Court, shall bear teste of the judge of such court 
i 3 Blacks. Coram. 269. 2 l Story’s Laws of the United States, 257. 


284 


PRACTICAL OPERATION OF 


which writs and process shall be under the seal of the 
court, and signed by the clerk thereof. 

§ 698. The forms of writs, and executions, except 
their style, and that of other process, in suits at Com¬ 
mon Law, are the same as are used in the Supreme 
Court of each state respectively. 

§ 699. 3d. Of the mode in which the decisions of 
courts are carried into effect. Much of this has already 
been explained under the head -of Process, but the 
executive part is yet to be explained. 

§ 700. The judgments of a court may have two gen¬ 
eral objects; 1st, to punish for crimes and misdemea¬ 
nors; or, 2dly, to obtain a debt. 

§ 701. 1st. The punishment of crimes may be either 
by imprisonment, or death. Both are executed under the 
order of the court, by the marshal, who confines the 
prisoners in the place assigned them, or executes them 
according to the sentence. In each county is erected a 
public jail, for the purpose of confining prisoners. 
Almost every state, also, has a Penitentiary, which is a 
general jail for the state. 

Contempts against the authority of the court are mis¬ 
demeanors, and are punishable at the discretion of the 
court, by fine and imprisonment. 

§ 702. 2d. A judgment, whose object is to obtain a 
debt, may be carried into effect in three different modes. 

1. By a levy upon goods and chattels. This writ is 
directed to the proper officer, whether marshal or 
sheriff, and is immediately levied upon the goods and 
chattels of the defendant. These goods are then ad¬ 
vertised for sale, at a given day, and sold for the bene¬ 
fit of the plaintiff', who, after deducting costs, receives 
the proceeds to the amount of his debt, and if there is 
not enough, execution is issued against other property. 

2. Another writ is issued upon lands and tenements, 
which is executed in the same manner by the proper 
officer, and the lands are then appraised according to 


THE NATIONAL CONSTITUTION. 285 

the laws of the state in which they lie, and sold at pub¬ 
lic auction. The process of the United States Courts 
is the same as that of the state in which the court is 
held. 3. Another writ is the capias ad satisfaciendum,^ 
which is levied upon the body. Under this writ, the 
marshal or sheriff takes the debtor to jail, and there con¬ 
fines him till the debt is paid, or he is relieved by the 
insolvent laws of the states. 

§ 703. These are the principal modes in which courts 
carry their decisions into effect. In the Court of Chan¬ 
cery or Equity, there are also some others peculiar to 
those courts. For example, a Court of Chancery, hav¬ 
ing ascertained that a conveyance ought to be made by 
one party to another, may decree that it be made, and 
give it the same effect as if it had been done. In gen¬ 
eral, however, the remedies above mentioned are the 
principal ones upon which reliance is placed in the pun¬ 
ishment of wrongs, or the attainment of rights. 

1 The writ of Capias ad Satisfaciendum commands the sheriff to take 
the body until satisfaction is made. • 


BOOK II. 


CHAPTER II. 

PRACTICA.L OPERATION OF THE STATE GOVERNMENTS. 

§ 704. To understand the difference between the 
operations of the State and United States governments, 
..we must remember that the latter has for its objects 
national concerns, —^the former municipal; the latter 
chiefly external, —the former wholly internal affairs. 
In this difference of objects consists the chief difference 
of operation. In the mode of operating, there is very 
little difference. State governments, like the National, 
act through the great channels of Legislative, Executive, 
and Judicial functions. 

1. The Legislative Functions of State Governments. 

§ 705. We have already seen what powers are held 
by the state legislatures in relation to the laws and in¬ 
stitutions of the states. Here we must consider prin¬ 
cipally the mode of their action. The legislatures of 
the states are organized in the same manner, as the 
national legislature, and arc governed by the same rules 
of precedence: indeed they are all derived from the rules 
of the British Parliament, except in cases where the pe¬ 
culiar circumstances of our government render them in¬ 
admissible. 

286 



PRACTICAL OPERATION, &C. 287 

§ 706. There is a Speaker, Clerk, Sergeant-at-Arms, 
and Doorkeeper, who have the same powers and duties 
as those of the national legislature. 

§ 707. In the same manner, the chief business of the 
legislatures is performed by the committees, who are 
likewise constituted in the same manner, being gener¬ 
ally appointed by the speaker; in the legislatures of the 
states, there can, of course, be no committee of foreign 
affairs; for the states have no foreign affairs to transact. 

§ 708. In some of the states, asdn Pennsylvania, the 
governor has the same veto upon the passage of bills as 
is vested in the President of the United States; and in 
others, as in Ohio, the majority of the legislature can 
pass a law without the governor’s assent. In fact, in 
Ohio, bills are not even signed by the governor, but only 
by the Speaker of the House and the Speaker of the 
Senate. 

2. THE STATE JUDICIARY. 

§ 709. The operations of the State Judiciary vary 
but little from those of the National Courts. In respect 
to their officers, there is a slight difference. Instead of 
a Marshal, the ministerial officer of the state courts is 
the Sheriff of the county. 

The Sheriff is the ancient Common Law officer of the 
the court. His office is a Saxon institution. He was 
originally the deputy of the earl .who had the command 
of the county, and is now the chief officer of the coun¬ 
ty.* They were originally, in most cases, chosen 
by the people, and in most of the states are still 
so chosen. 

§ 710. The Sheriff is first a conservator of the peace, 
and is bound to apprehend and commit to prison all 
persons who break, or attempt to break the peace. He 
is also bound to apprehend persons who have committed 
crimes, and for these purposes he is vested with power 
to call to his assistance the posse comitatus, i. e. the 
* 1 Blackstone, 339. 


288 


PRACTICAL OPERATION OF 


power of the county. 2. He is the jailer of the county, 
and is bound to keep all prisoners in proper and safe 
custody, and to provide for them; for which purpose he 
is allowed his expenses and fees. 

3. The Sheriff is the ministerial officer of all courts 
having jurisdiction within the county. He must serve 
all writs, make escorts, take bail, summon and return ju¬ 
ries, and carry the judgment of the court into execution. 

§711. To execute these duties the sheriff has under 
him various inferior officers, as deputies, jailers, &c. 

§ 712. In the counties of the different states, there is 
also another officer, whose duties are partly judicial and 
partly ministerial. This officer is the Coroner. His 
duty is, 1st, in all cases of death, supposed to be by vio¬ 
lence, to call a jury to inquire into the matter, sum¬ 
mon witnesses, and return the verdict into court. 2dly. 
In case of vacancy in the office of Sheriff, the Coroner 
performs his duty. 

§ 713. The states have also a large class of judicial 
officers, who are unknown to the Federal System, except 
in the District of Columbia. These are Justices of the 
Peace. These officers are in every way important, and 
their duties constitute a large part of the judicial busi¬ 
ness of society. 

To give a view of these, we will select the office and 
duties of a Justice of the Peace in Ohio. Their juris¬ 
diction varies somewhat in the different states, but their 
general duties are the same. 

§ 714. In Ohio, the jurisdiction of Justices, in civil 
cases, is limited, 

1. In territory, to the township wherein they are 
elected; 

2. In amount, to one hundred dollars; 

3. But in confession of judgment, without process, to 
two hundred dollars; 

4. They have power to administer any oath required 
by law to be taken or administered; 


THE STATE GOVERN3IENTS. 289 

5. They may issue process for witnesses in any 
cause or suit pending before them; 

6. They have power to take acknowledgments of 
deeds, mortgages, and other instruments of writing; 

7. The three last classes of powers are co-extensive 
with the county. 

§ 715. The jurisdiction of Justices in criminal ca¬ 
ses is, 

1. Co-extensive with the county wherein he was 
elected; 

2. He is conservator of the peace herein; 

3. He is authorized and required to cause every per¬ 
son, charged with the commission of a crime or breach 
of the law, to be brought before him for examination; 

4. He is empowered, and it is his duty to inquire 
into the complaint, and cause every person so charged 
either to be committed to jail, discharged, or recognized 
to appear at the next term of court, according to the 
nature of the case; 

5. It is his duty to recognize all such witnesses as he 
may consider necessary to the further prosecution of 
the cause, to appear before the next term of court; 

6. He has power to Jine, for several misdemeanors 
and criminal offences described by statute, and in such 
;.dses, after entering judgment, he may issue execution 
for the fine and costs. 

§ 716. The ministerial officer of the Justice’s Court 
is the Constable. 

1. They have power to execute process of subpoena, 
in civil cases, throughout their respective counties; 

- 2. They must moreover execute such other legal pro¬ 
cess, in civil cases, as may be directed to them; 

3. It is their duty to apprehend and bring to justice 
felons and disturbers of the peace, to suppress riots, and 
keep and preserve the peace within their respective 
counties; . • • ‘ 

.' 4 ., I And if any person charged with the commission of 

25 


290 


PRACTICAL OPERATION OP 


any crime or offence shall flee from justice, it shall be 
lawful for any constable of the county where such crime 
is committed, and it is his duty, to pursue and arrest 
such fugitive in any other county of the state. 

§ 717. In addition to the powers of Justices of the 
Peace above enumerated, they have the same jurisdic¬ 
tion in cases concerning real estate as in personal, 
where the damages do not exceed one hundred dollars, 
and the title to real estate is not called in question. 
They have also power to enforce obedience to their pro¬ 
cess by attachment, &c. 

§ 718. From this statement it will be evident that a 
large mass of business must be transacted by Justices 
of the Peace. Most of the debts to be collected are be¬ 
low one hundred dollars, and therefore fall within a jus¬ 
tice’s jurisdiction. Almost ail the criminal cases first 
pass under examination before the justices, so that in 
every respect their functions are important: in Ohio, 
and the majority of the states, they are elected by the 
people of their respective townstiips; in Connecticut and 
others, by the legislature. 

§ 719. Besides the officers and courts above enume¬ 
rated, the states have several gradations of municipal 
courts, which do not exist under the government of the 
United States—but whose general operations are car¬ 
ried on in the same manner. Thus, in cities, there is 
generally a court composed of the Mayor and Aider- 
men, for the trial of offences against the city ordinances; 
again, there is generally also a Court of Quarter Ses¬ 
sions (in New-York, composed of the Recorder and 
part of the Aldermen,) for the trial of criminal offences: 
then there are the usual county courts, &-c. In this 
manner any number of courts may be organized, to 
suit the convenience of the people; their decisions, how¬ 
ever, are all subject to review byian ultimate tribunal. 
Under the laws of the United States, we have seen 
there are but' three orders of courts,—the Supreme, 


THE STATE GOVERNMENTS. 291 

Circuit and District Courts. But these may constitu¬ 
tionally be increased at the discretion of Congress. :: 

3. THE EXECUTIVE. ^ 

§ 720. The duties of the Governors of the several 
states is, in general, analogous to those of the President 
of the United States, in those respects in which the 
powers of the several state governments are similar 
to. those of the union. 

1. The governor has the power to command the mili¬ 
tia of the state, when not called into actual service, by 
the United States; also, he has the power of command¬ 
ing the army and navy, if there be one. A state can¬ 
not maintain these in time of peace, and in time of war 
they have not the power, except so far as consists in the 
support of volunteers and drafted men. 

2. They can require written opinions and statements 
from the heads of departments. 

3. It is their duty to communicate such information as 
they may think necessary on the state of public affairs. 

4. It is their duty to see the laws faithfully executed. 

5. In some of the states, as Pennsylvania, they hold 
the appointing power almost exclusively. In others, as 
in New-York, they hold it in conjunction with the senate, 
and in others again, as Ohio, they have none of it. 

§ 721. 6. The departments of executive officers un¬ 
der the state governments are also organized in analogy 
to those of the general government, so far as they go. 
The departments of War, Navy, Post-office, and Mint, 
do not exist under the state governments, because the 
states have no power over the subjects in relation to 
which those departments are erected. The states have 
a Department of State, the chief object of which is the 
preservation of the laws and public" records, and the 
issuing of commissions. There is also a Treasurer, or 
Comptroller, whose business is the receipt, distribution, 
and safe keeping of the public funds. 


292 


PRACTICAL OPERATIONS OF, &C. 

-L § 722. From this statement we see, that as national 
governments, the states have very little to do. All pow¬ 
ers of a general nature are vested in the general gov¬ 
ernment. 

■ ^ # 

' Our work is now ended. It contains little ingenuity 
and less novelty; but the student should recollect, that, 
these are not the characteristics of truth and learning in 
Constitutions and Jurisprudence; let him seek rather 
the accuracy of the legal historian, and a correct deline¬ 
ation of our political institutions. From the study of 
these, he must ever go forth increased in knowledge, 
in love of liberty, and the ardor of patriotism. 



'o:*-; --fi 




■i 










PARLIAMENTARY RULES. 


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PARLIAMENTARY RULES 

FOR THE GOVERNMENT OF PUBLIC ASSEMBLIES. 

A knowledge of the rules, which regulate the for¬ 
mation, and order of business, in public assemblies is 
essential to every well informed citizen. Every citizen 
is obliged, at some time, to take part in the primary 
assemblies of the people. These are constantly held, 
not merely for political purposes,—but. for those of bus¬ 
iness,—commercial, literary, benevolent or religious. 
In addition to these primary assemblies,—there are 
various, and numerous organized associations with 
some one, or, more of which almost every citizen is 
connected. The rules for the transaction of business, 
in the assemblies, or, associations are substantially the 
same in all of them. They were originally derived 
from the usages of the British Parliament,—hence, they 
were adopted by the American Legislative Assemblies, 
—and became Common Law, by the practice of Con- 
•gress, and the State Legislatures. 

In religious assemblies, they are subordinate to their 
respective Constitutions,—also the rule of proceeding. 
In fine, there is no other code of regulations, known to 
public assemblies, than that of parliamentary usage. 

The most important of these rule are substantially 
as follows:— 

• 1, When a Primary Assembly of the people, or of any 

part of them is called together, for any purpose,—the 
first thing to be done is to choose a presiding officer :— 
for, without such an officer, nothing can be done:—No 
question could be put, and the assembly would be an 
Anarchy, 

2. This officer is called Chairman^ and he is chosen 
thus. Some one rises, at a proper time, and moves that 


296 


PARLIAMENTARY RULES. 


A. B. be appointed Chairman of the meeting:—this is 
seconded,—and the person making the motion puts the 
question, and if the motion be carried A. B. takes the 
chair, as presiding officer. 

3. After this all questions are put to the Assembly, 
by the Chairman. 

4. Regularly, there must be a Secretary to every 
public meeting, whose duty it is to record its proceed¬ 
ings, for future reference. 

5. The Assembly may appoint such other officers, as 
they may deem expedient, and on important occasions, 
there are usually appointed several Vice-Presidents, 
and additional Secretaries. 

6. In constitutionally organized bodies,—such as the 
Episcopal Church,—the Presbyterian General Assem¬ 
bly,—the Congress of the United States, and the Le¬ 
gislatures of the State,—there are usually presiding 
officers named, in the constitution, and a mode of ap¬ 
pointment provided for. Thus,—in the Presbyterian 
General Assembly the presiding officer is called a 
Moderator,—who is chosen by each General Assembly; 
—blit, the last Moderator presides until the new one is 
chosen.^ So too, in the Episcopal Church, when pre¬ 
sent the eldest Bishop is the presidinir officer. In the 
Congress of the United States, the Vicc-President'in 
the Senate, and the Speaker of the House, are the 
Chairmen of their respective houses. 

7. When thus regularly appointed, the Chairman, or 
presiding officer is vested with power to preserve order,* 
and to decide questions arising between the respec¬ 
tive members of the body. 

But in all Legislatures, as well, as primary assem¬ 
blies, there is an appeal Sx'om the Speaker,'or presiding 
officer to the Assembly itself. 

8. In preserving order in a public assembly,—-ihe 
presiding officer may call upon the house to sustain 

iForm of Government of the Presbyterian Church in the U. S. 

2 Idem Chapter 19th pf Jefferson’s JVJajiual, page 30 to 50. Rules 
of the riouse of Representatives—-Rule 2d. . ; 

® Jefferson’s Manual 53.’- 3. Ney’s Debates 319. 



PARLIAMENTARY RULES. 


297 


him. Ill a popular assembly if this is not done, the 
assembly becomes immediately dissolved, because in a 
state of anarchy. In the Senate of the U. States, the 
Vice-President has the sole power of preserving order: 
—In the House of Representatives, the Speaker may 
call members by name, and require them to preserve 
order. If, they do not, the House will require them to 
withdraw, and, after hearing the charge, and the ex¬ 
cuse,—will proceed to consider ihe degree of punish¬ 
ment, they will inflict.* In the Presbyterian General 
Assembly all power of this kind is vested in the Mode¬ 
rator.® 

9. Every public Assembly has the power of deter¬ 
mining the qualifications of its own members. This 
it must, of course, have, or it would be liable to inter¬ 
mixture with foreign bodies, without any means of re¬ 
dress. In an ordinary assembly of the people, there is 
commonly no need of an enquiry into qualifications;— 
yet, common history shows, that many assemblies break 
up in disorder, in consequence of persons claiming to 
take part in the proceedings of the meeting, who are not 
properly within the terms, under which the meeting 
was called. In regularly constituted bodies, this pow¬ 
er is usually expressly granted:—for example, in the 
Constitution of the U. States,—this power is granted 
to both Houses of Congress.® So also of the Presby¬ 
terian General Assembly.'* 

QUORUM. 

10. In every constitutionally organized body, there 
must be some number fixed, which are sufficient to do 
business. This number is called a quorum. In Con¬ 
gress, a majority of each House constitutes a quorum.* 
In Ohio, two thirds of either house of the General As¬ 
sembly, make a quorum. So also in Indiana.® In Ken- 

1 Idem 49. 2 Form of Government Chapt. 19' 

^ Constitution U. S. 1 Art. 5 Sect. 

Form of Government Chapt. 12, Art. 7. 

® Ameiican Constitution, 331. 




r 


298 rARLIAHIENTARY KULES. 

tuckV) a majority.^ In the Presbyterian General As¬ 
sembly,^ fourteen Commissioners constitute a quorum. 

11. In primary assemblies of the people, there is, of 
course, no number requisite to constitute a quorum, 
and it frequently happens, that a very small number of 
persons act for a large community. The citizen gener¬ 
ally should make it his duty to attend public meetings 
called on important subjects, lest he should find after¬ 
wards, that others had assumed to put forth opinions for 
the community, which the majority do not sanction. 

13. Where a certain quorum is necessary to do busi¬ 
ness, in general the chair should not be taken by the 
presiding officer till that quorum is present. And 
whenever, in the progress of business, it is observed, 
that a quorum is not present, any member may call for 
a count of the House; and a quorum being found want¬ 
ing, business must be suspended.® 

14. In a constitutional body, after the chairman has 
taken his seat, and a quorum being present, the first 
thing to be done, is to read the Journal of the preceding 
day, in order, that mistakes, if there be any, may be 
corrected, and the Journal become a true history of 
the proceedings."* 

15. In the Senate of the United States, the Vice- 
President has no vote, but a casting vote, when the 
House is equally divided.® When the Chairman is a 
Senator, he has no vote, but his own vote as a Senator. 
That he has. In the House of Representatives, or, the 
General Assembly of Ohio, the Speaker has only his 
own vote. This vote is felt when bv giving it in the 
negative, he makes the vote a tie,® and thus defeats 
the motion, or bill, or, when by giving it he makes 
a majority. In general, the Chairman of a public as¬ 
sembly, has his own vote, and no more, though in a 
primary assembly, should the house be equally divided, 
the Chairman may give a casting vote. 

* Idem. Government, Cliapt. 12, Sect. 3. 

® Jefferson’s Manual, 28. * Idem. 

® Constitution, Art. 1, Sect. 3. 

® Rules of the House Repr. 9. 




parlta:mentaky rules. 


299 


ORDER. 

16. By the U. S. Constitution’ each House of Con¬ 
gress, has the power to determine its own rules of 
proceedings. In any general assembly, where there is 
not a constitution forbidding it, this power naturally, 
and necessarily, belongs to the assembly. Public as¬ 
semblies of the people do not make such rules,—be¬ 
cause to do it, would consume time unnecessarily. 
Universal custom has made the rules of order, adopted 
in the British Parliament, and the American Congress, 
the rules of all popular assemblies. 

17. When a person rises to speak, he must rise from 
his seat, and address the Chairman, who should call 
him by name, that the assembly may know, who it is, 
and pay attention 

18. The person speaking, must confine himself to 
the question under debate, and avoid formality.® And 
if he transgress the rules of order, the Chairman may 
immediately call him to order. If, he questions, the 
correctness of the Chairman, he may appeal to the 
House, who will decide the question. 

19. If, two persons rise to speak together, the Chair¬ 
man determines which shall have precedence: it may, 
however, be referred to the House.^ 

20. The Chairman of an assembly, cannot regularly 
speak'to any thing but a point^of order, or, a question 
of fact.® 

21. A person speaking cannot regularly mention 
another member of the assembly hy name. He must 
describe him, as ‘‘The gentleman who has just sat 
down,” ‘‘the gentleman, on the other side of the ques¬ 
tion, 

22. All decisions of the Chairman may be controlled 
by the House.’’ 

* Constitution, Art. 1, Sect. 5. 

* .Tefferson’s Manuel Rules'of the House 19. 

® Rules of the House 18 and 19. 1 ■ 

^ Jefferson’s Manual, 38. 5 Idem. 40, 

«Idem 41. ’ Idem 40. •, 



300 


rARLTAMEXTAHY RULES. 


ORDER OE BUSINESS. 

23. In ev}ery puhlic assembly, there are two technical 
terms, expressing the mode of doing business. One of 
them is a Motion, —the second a Resolution. At these, 
in a primary assembly of the people, the power of the 
assembly stops;—because, not having any formal, or 
constitutional powers to pass laws, they can only or¬ 
ganize themselves,—discuss public matters,—and re¬ 
cord, in the form of Resolutions, their deliberate opin¬ 
ions. In a free country, opinions thus expressed by 
those who are the majority, become in the end laws. 
These Laws are enacted by the Legislatures, who are 
constitutional bodies,—vested by the people, under 
certain sanctions, and forms, with the power of making 
laws. In these Legislative bodies, there are not only 
Motions, and Resolutions, but Rules, orders, and laurs. 

24. A Motion is simply a desire expressed, by a 
member that an opinion be expressed, or, an act be done, 
by the Assembly, which is then put to the vote, and if 
sanctioned, is said to be passed. Thus, when the As¬ 
sembly meets it moves that B. takes the chair,—which, 
if approved, by the majority is passed, and B. takes the 
chair. 

25. A Resolution is simply the expression of an 
opinion,—and like all other matters brought before the 
assembly must be moved, by some one, and passed by 
a vote of the assembl^^ It is commonly and properly 
expressed thus;—“ Resolved, that in the opinion of this 
meeting, the U. States should immediately take mea¬ 
sures for ascertaining the Northern boundery of the U. 
States to the Pacific Ocean, and take formal possession 
of the country near the mouth of the Columbia River.” 

26. Rules are regulations drawn up by Legislative, 
or. Incorporated bodies, holding more than one session, 
for the permanent Government of their proceedings. 
Accordingly the British Parliament, the American Con¬ 
gress, and all Legislative bodies have Rules of pro¬ 
ceeding. 

27. Orders, are, what they express,—orders made 


rARLIAMENTARY RULES. 


301 


by a Legislative body, directing something to be done, 
which is within the power of the House, and relates to 
the Assembly itself. Thus, the Orders of the Day, are 
those things which the Assembly, in the course of its 
business, have directed to be done on that day. Thus, 
the House of Representatives orders, its Sergeant at 
Arms to do certain acts relative to its police, or to bring 
certain persons before it. 

28. Laws are formal orders, commanding, or, forbid¬ 
ding certain things to be done, not merely by the 
Legislature itself, but by the whole community, which 
that Legislature represents,—and which it is, by the 
Constitution of the country, vested with power to 
enact. 

29. A Motion must regularly have a second: —be¬ 
cause if it have no second, it is most obvious, it cannot 
pass the assembly.* 

30. All motions must regularly be reduced to writ¬ 
ing, because otherwise, there cannot be made out a 
correct history of the proceedings which is necessary", 
in order to correct any misunderstanding which the 
members might afterwards have provide exact evidence 
of the doings of the assembly. 

31. In all Legislative bodies, whether civil or eccle¬ 
siastical, all the details, and preparation of business, is 
done by Committees. There arc three kinds of Com¬ 
mittees. 1st. Committees of the whole; 2nd. Standing 
Committees; 3rd. Special Committees. 

32. A Committee of the Whole is when a Legislative 
body resolves itself into a Committee;—the object of 
which is to get rid of the restraints of the standing 
rules of order; for, as a Legislative body, it has estab¬ 
lished certain rules of business, and discussion, which 
cannot be avoided; but, as a Committee, it is not bound 
by them. 

33. A Standing Committee is a Committee appointed 
by a Legislative body, during its session, and to which is 
referred a certain portion of its business, to be prepar¬ 
ed for action, and reported upon. 


* Jefferson’s Manual, 50, 



302 


PARLIAMENTARY RULES. 


34. A Special Committee is one, which is appointed 
on a particular subject, and by whom a report on that 
subject is to be made. This is the only kind of Com¬ 
mittee, which strictly belongs to a Primary Assembly, 
—for as it has no permanent rules of proceeding, its 
discussions are as free as those of a Committee of the 
Whole; and, as it is in session but a short time, it needs 
no Standing Committee. The resolutions of primary 
assemblies are, however, almost always prepared by 
Special Committees appointed for that purpose. 

35. In the House of Representatives, in the National 
Congress, there are appointed seventeen Standing 
Committees, whose business is of a general nature. 
They are as follows, and their business is explained, 
by their titles: 

, A Commmittee of Elections. 

of Ways and Means, 

‘‘ of Claims, 

“ of Commerce, 

“ “ on Public Lands, 

‘‘ “ on Post Office, and Post Roads, 

‘‘ ‘‘ on the District of Columbia, 

‘‘ “ on the Judiciary, 

‘‘ ‘‘ on Pensions, and Revolutionary 

Claims, 

“ “ on Public Expenditures, 

“ “ on Private Land Claims, 

‘‘ “ on Manufactures, 

“ on Agriculture, 

“ ‘‘ on Indian Affiiirs, 

‘‘ “ on Military Affairs, 

“ “ on Naval Affairs, 

‘‘ “ on Foreign Affairs. 

36. To these Committees in the House of Represen¬ 
tatives, are regularly referred all the subjects express¬ 
ed by their titles, and, generally speaking, the topics 
connected with these subjects are brought before the 
House only by those Committees. These Committees 
examine in detail, the mass of documents connected 
with the public business, and by them that business is 


PARLIAMENTARY RULES. 


303 


prepared for the discussion and action of the house. 

37. A Committee in a Legislative body, may report, 
by Bill, by Resolution, or, by asking leave to be dis* 
charged. 

38. A Bill is thefoirm ofalaw, prepared to be passed, 
and every law before it is enacted, must be presented, 
in some regular form. 

39. A Committee may also report a resolution sim¬ 
ply expressive of the opinion of the House;—or, may 
ask leave to be discharged,—which the house will 
grant, or not, at its discretion. 

40. A Bill must regularly he read, in a Legislative 
body, three times before it become a Law.‘ And no bill 
shall be twice read on the same day, without special 
leave.^ 

41. The first reading of a Bill is for information, and 
if, opposition be then made to it, the question put to the 
House is, ‘‘ Shall this Bill be rejected.’” If, no opposi¬ 
tion be made, or, the question of rejection be negativ¬ 
ed, the bill goes to a second reading, without a question. 

42. A Bill cannot be amended, at the first reading.'* 

43. Upon the second reading of a bill, the speakep 
states that it is readv for commitment, or, engrossment. 
Commitment is sending it to some committee for re¬ 
port, and Engrossment is the preparation of^the Bill, 
by a careful examination, and writing out in a full fair 
hand, that there may be no mistakes.® 

44. The second reading must regularly be on another 
day.® If, on motion, it is decided, that the Bill shall be 
committed, it may be referred to either of the Commit¬ 
tees named before, a Committee of the Whole,—a Stand¬ 
ing Committee, or a Special Committee. If, it be 
referred to a Committee of the Whole, the House ap¬ 
point a day, in which it will be considered, in Commit¬ 
tee of the VVhole. 

45. If the Bill be referred to. a Special Committee, 
for amendment, the Committee is regularly appointed 

1 Rule 6G [louse of Representatives. ^ Idem. 

3 Rule 67 of tlie flouse of Representatives. 

^ Jefferson’s Manual 53. 5j[iuie 71. ejefferson’s Manual 54. 






304 


PARLIAMENTARY RULES. 


by the Speaker; but the House has entire control of 
the appointment, if, it choose to exercise it. Regular¬ 
ly, the person who has introduced tlie Bill, or, subject 
before the House, and the member who proposes to 
amend it, must be appointed on the Committee; and on 
the other hand,—-one who does not propose to amend, 
but is altogether opposed to the Bill, should not be ap¬ 
pointed on the Committee; for a “child should not be 
put to a nurse that cares nothing for it.’” 

46. The Clerk may deliver the Bill to either mem¬ 
ber of the Committee, but properly to the Chairman, 
who is the one first named. 

47. A committee may meet where they please, but 
they cannot act, except when together, and nothing can 
be the report of the Committee, except, what is agreed 
upon in committee. 

48. A majority of a committee constitutes a quorum 
for business.^ 

49. The committee to whom a bill is referred have 
full power over it, except, as to its title; that they can¬ 
not change. 

50. The natural order in considering any paper, be¬ 
fore a legislative body, is to begin at the beginning, 
and proceed through regularly; to which there is a sin¬ 
gle exception, in the case of a Preamble, because in 
the course of discussion, a bill may be so altered, as to 
require a new preamble. 

51. When the Bill, resolution, or paper, is ready to 
be reported, the Chairman,'standing in his place, re¬ 
ports the same to the House, with, or without, amend¬ 
ment. The report being made, the committee, (if a 
special committee,) is dissolved, and can no more act 
without new authority.® 

52. After Report to the House, however, and at any 
time before the bill is passed, it m:iy he re-committed for 
the purpose of further alteration and amendment.'^ 

52. The Amendments are read, by the Clerk, and 
considered by the House in order; When these amend- 


1 Jefferson’s Manual 55. 
Rules of the House 70. 


Hdern 56. 


^ Idem 61. 



PARLIAMENTARY RULES. 


305 


mcnts are all through with, the Speaker puts the ques¬ 
tion, ‘^whether this Bill shall be read the third time?” 

54. When the Bill has been committed, amend¬ 
ments reported,—accepted or rejected, and the ques¬ 
tion is on the third reading, the bill is supposed to be 
made as perfect as its friends can make it, and at this 
stage of the proceedings, it is commonly, and most 
properly, attacked by its opponents,- and the discussion 
commences on its merits. 

55. There arc still two stages of proceeding before 
the Bill is passed, its third reading, and its passage for 
engrossment. The trying vote is generally taken on 
the third reading, before which it is not generally known, 
when there is a difference of opinion on the merits, 
whether the bill will pass. 

50. When a Bill is engrossed, the title is to bo en¬ 
dorsed on the back, and not within the bill.^ 

AMENDMENTS. 

57. If an amendment be prepared, inconsistent with 
one already agreed to, it is ground for rejection by the 
House,’—but is not within the power of the Speaker to 
reject, because, such power would give him tho power 
of deciding, what was, or, was not, consistent.^ 

58. An Amendment to an Amendment, is in order: As 
for example, when it is moved to insert a paragraph by 
w’ay of amendment, it is proper for its friends to make 
it as perfect as possible, by moving amendments, either 
in words or matter.® If, it were proposed to amend, by 
striking out certain words, an amendment maybe mov¬ 
ed to the amendment, by striking out certain wordsjTrow 
the amendment, of which the effect is to leave them in 
the original bill, or resolution. 

59. A totally different bill may be engrossed on, or, 
submitted for another, under the words, “ Be it enact¬ 
ed.” The United States House of Representatives, 
once engrafted a bill to support the Military Academy, 
on a bill to Improve Harbors and Erect Light-Houses! 


26 ^ 


‘ J*g»rson’3 Manual G8. 


2 Idem. 


3 Idem 86-7. 





a06 PARLIAMENTARY RULES. 

60. It is in order to move an amendment to strike 
out certain words, and insert others;—this being re¬ 
jected, it is in order to move to strike out, and insert a 
different set of words; this being rejected, it is in order 
to move to strike out the same words, and insert no¬ 
thing:—Because each of these is a distinct proposition 
differing from the others. But it must be recollected, 
that, it is not in order, if the motion to strike out and 
insert A. is carried; to move an amendment to strike 
out A. and insert B. To avoid this dilemma, the mover 
of B. must give notice pending the motion to insert A. 
that he intends to move the insertion of B. in which 
case, he will gain the votes of all who prefer the 
amendment B. to the amendment A., in opposition to 
A.^ But, after A. is inserted, it is in order to move an 
amendment by striking out the whole, or, part of the 
original paragraph, including A.’Aor this is essentially 
a different proposition from that, to strike out A. merely. 

61. The third reading of a Bill is the proper period 
to Jill up blanks. 

62. After a hill is passed, there can be no further 
alteration of it, on any point. 

CO-EXISTING AND EQUIVALENT QUESTION. 

63. Can the House be in possession of two questions 
at the same mo-rnent of time? A question may be in¬ 
terrupted, by a vote of Adjournment, in which case, it 
does not stand before the House, in the same stage, at 
the next meeting, but must come before it in the usual 
way. So also, when interrupted by the orders of the 
day, which are privileged questions. But by a motion 
to amend, withdraw, or questions of orders, the business 
is only suspended, not removed, and when these are 
decided, it stands before the House, as before. None, 
but the class of privileged questions can be brought 
forward while another is before the House.^ 

64. When questions are perfectly equivalent, or that 


Jefferson’s Manual 88. 


2 Idem 95. 



PARLIAMENTARY RULES. 


307 


the negative of one, amounts to an affirmative of 
the other, and leaves no other alternative, the decision 
of the one necessarily excludes the other. Thus, the 
negative of striking out amounts to the affirmative of 
agreeing, and, therefore, to put the question on agree¬ 
ing, would, in effect, be to put the question twice over.* 

65. The question is to be put by the Speaker, first on 
the affirmative, and then on the negative side. After the 
afirmative is put, a member may still rise to speak be¬ 
cause it is not B. full question, till both sides areput.^ 

66. If a question contain more parts than one, it 
may be divided into two, or, more questions,—but, not 
as the rightof an individual member; but, with the con¬ 
sent of the House; —for, who is to decide whether a 
question is complicated, or not?'* 

67. When a question is divided, after the question on 
the first member, the second is open to debate, and 
amendment, because, it is a known rule, that a person 
may rise, and speak, at any time, before the question is 
completely decided;—but the question is not complete¬ 
ly put, when the vote has been taken on the first mem¬ 
ber only. 

68. When a motion has once been made, and carried 
in the affirmative, or negative, it shall be in order for 
any member of the majority to move for a re-consideration 
thereof, on the same, or succeeding day.^ 

69. A Bill, or Resolution re-considered, is restored 
to its former state, and is open for amendment, and 
discussion on the third reading.® It is not settled how 
far this question of reconsideration, and the consequent 
continuation of the same discussion may be continued. 


PRIORITY OF MOTIONS, AND PRIVILEGED 
QUESTIONS. 


70. By the 29th Rule of the House Representatives, 
it is said, that, when a question is under debate no mo¬ 
tion shall be received but— 


1 Jefferson’s Manual 96. 
4 Rules of the House .38. 


2 Idem 98. ^ Idem 91. 

5 Jefferson’s Manual 109-10. 



308 


PAKLIAMENTARY RULES. 


1st to Adjourn, 

2d. To lie on the table, 

3d. For the previous question, 

4th. To postpone to a day certain, 

5th. To commit, or, amend, 

6th. To postpone indefinitely. 

Which several motions shall have precedence, in the 
order, in which they are arranged ; and no motion to post¬ 
pone to a day certain, to commit, or to postpone indef¬ 
initely, being decided, shall be again allowed, on, the 
same day, and of the same stage of the proposition. 

71. It is a general rule, that the question first mov¬ 
ed, and seconded shall be first put, but, this rule gives 
Avay to what may be called 'privileged questions, which 
are those above stated. 

72. The Orders of the Day are of course privileged; 
that is, the special order of the day, takes place of all 
general business, and of all motions, except for an ad- 
journraet. When a member, therefore, moves the order 
of the day, the question is not on a particular one, but 

whether the House wfill now proceed to the orders of 
the day,*’ and on this motion, all debate must cease.' 

73. A motion to adjourn takes place of all others, 
because otherwise the House might be kept sitting against 
its w^ill; yet, this motion cannot be received after ano¬ 
ther question is actually put, and the House is engaged 
in voting. 

74. When the House is willing to consider a question, 
but has other business it prefers, or, wants time for in¬ 
formation, the motion, or, bill is ordered to lie on the 
table, whence it can be ordered up, wdien it suits the 
convenience of the House. 

75. When a proposition is moved, which it is useless 
or, inexpedient now to express, or, or discuss, the pre- 
vious question has been introduced for suppressing, for 
that time the motion, and its discussion.® 

76. When any question is before the house; any 
members may move the previous question, which is; 
“shall the main question be now put;” if, it pass, then 


* Jefferson’s Manual 71. 


2 Jefferson’s Manual 72. 



PARLIAMENTARY RULES. 


309 


the main question is to be put immediately, without de^ 
bate; but it, lost, then the main question is not put, and 
the discussion goes on. If, the previous question is car¬ 
ried; it cuts oft' all amendments, not yet acted on, and 
forces the question on the main pro|x>sition without 
amendment. 

17. A postponement to a day certain is used, when 
a proposition is made, which it is proper to acton but if 
information is wanted, or, something more pressing claims 
present attention, and the question is adjourned to some 
day within the session; sometimes this motion is made 
to a day beyond the session; when it is the same, as 
indefinite postponement. 

78. The previous question gets rid of a proposition 
only for a single dny, and the same proposition may be 
renewed; if, therefore, they wish to get rid of it entire¬ 
ly; it is mowto postpone it indejinitely. This quash¬ 
es it for the session. 

79. By the rules of the House of Representatives, 
the question of committing and amending has priority to 
that of indefinitement postponement; The reason of 
which is, that if, a question be indefinitely postponed; 
there is no room for amendment, by which perhaps that 
very proposition might have been made acceptable. On 
the other hand, if, a proposition be amended, in a way 
to make it most acceptable; it may still, if the majority 
choose, be indefinitely postponed. 

80. As a general rule, the first question moved, must 
be first put; but, this is not universal. Suj)pose amotion is 
made to amend, and then a motion to commit. Here the 
question on commitment, though last moved, must be first 
put; because, really, it is friendly to the amendment.’ 

81. Competition may arise among the privileged ques¬ 
tions, as in the instance last given. Some examples of 
this are as follows; 

8*2. First, suppose it is moved the previous question, 
to Postpone, To Commit and Amend', These questions 
have preeedence, by the Rule of the House of Represen¬ 
tatives, in the order they are here put; and consequent¬ 
ly, the vote must be on the previous question. In this 


* Jefferson’s Manual 76. 



310 


parliamentary rules. 


case, it is said the moving of the Previous Question, 
defeats the question, in whatever way, it may be de¬ 
cided. For if, affirmatively; the Main Question must 
be now put: But if, negatively, then main question 
is removed from before the House. 

83. If, on motion for Postponement, it be decided in the 
affirmative, there is nothing, for the House to act upon, 
but if, in the negative, the main question, may then be 
put, and defeated, by the previous question, or, it may 
be committed, and amended. 

84. So also, if a motion is made to commit and amend, 
and fails, the Previous Question, or. Postponement may 
then be made, and the Main Question defeated without 
discussion. 

85. By the Rules of the House,* the motion to Amend 
is cut off, by the motion for the Previous Question, 
which forces on the Main Question. 

86. The questions heretofore mentioned are supposed 
to be put on I he original main proposition; but let us sup¬ 
pose them moved, not on the primary question, but 
the secondary one. If, it be moved to postpone, com¬ 
mit, or, amend the primary proposition, and it be moved 
to suppress that motion by putting ihoi previous question, 
it is not allowed, because it would embarrass questions 
too much to allow them to be piled up several stories 
high. 

87. Suppose a motion for the previous question, or, 
a motion to commit, and amend, and it be then moved 
to postpone the motion for the previous question, or, the 
motion for commitment, and amendment, this motion is 
not allowed, because, it would be absurd to postpone the 
collateral question, and leave the principal one still to 
act upon.“ 

88. There are several questions, which in their na¬ 
ture being incidental to all questions, will take place 
of every one, privileged, or, not. For example, a question 
of Order may arise, at any moment, and must be decid¬ 
ed before the regular business can proceed. A matter 
of privilege arising out of a question, or, from the quar- 


I 29 Rule. 


efferson’s Manual. 




PARLIAMENTARY RULES. 


311 


rel of two members, or, disorderly conduct, supercedes the 
original question, and must be first disposed of.* So 
also, Leave to withdraw a motion. Because, when a 
motion is put, and seconded, it is in the possession o f the 
house, not the mover, and cannot be withdrawn without 
leave. This implies that leave may be given, and 
consequetly, as that is necessarily prior to any ques¬ 
tion, or motion, the vote on it must be taken first. 

89. Can the House be in possession of two questions, at 
once? No question, but a priviliged one can be brought 
forward while there is another before the House; the 
rule being, that when a motion has been made, and 
seconded, no other can be received, except it be a pri¬ 
vileged one; suppose, however, a question is intercepted, 
by some of the privileged questions, in what way will it 
stand before the House? If, it be intercepted, by a 
question of adjournment, it is removed from before the 
House, and at its next meeting must come before it, 
in the usual way. So also, the orders of the day, and 
the previous question, postponement, or commitment, re¬ 
move the question from before the House. But if, the 
motion be one to amend, withdraw, read papers, or of 
order and privilege, then the question before the House 
is only suspended and when these arc decided, stands 
again before the House.^ 

90. If, on a question for rejection, the bill is retained, 
it passes of course to its next reading; and a question for 
a second reading determined negatively is a rejection 
without further question. 

91. So, in all questions, which are perfectly equivalent, 
the negative of one is the affirmative of the other, and 
concludes necessarily the other. Thus, the negative of 
striking out is the affirmative of agreeing; and there¬ 
fore, the latter question is not put, because, wholly 
useless. 

MISCELLANEOUS RULES. 

91. The question is put first on the affirmative, and 
then on the negative side; till which it is not a full ques- 


* Idem 81. 


Jefferson’s Manual 85. 



312 


PARLIAMENTARY RULES. 


tion; but, in the case of small matters, such as receiv¬ 
ing reports, petitions, reading papers, &c., the Speaker, 
or. Chairman will presume the consent of the House, 
unless some objection be formally made, which saves 
the time of taking votes, on matters of mere routine. 

98. When an essential provision has been omitted in 
a bill; rather than erase the bill, it is usual to add a 
clause, on a separate paper, engrossed, and called a rider, 
which is read, and put to the question three times. 
Every one is at liberty to bring in a rider, without asking 
leave. 

94. Amendments must be read, as often,as the origin¬ 
al Bill. If introduced at the second reading, twice; if 
at the third, three times. They are admitted, at the 
third reading, with great reluctance. 

^ 95. When a Bill has been read a third time, and is 

on its final passage, the Speaker, holding the Bill in 
his hand puts the question, on its passage, saying, “ gen¬ 
tleman, all you who are of opinion, that this bill shall 
pass, say aye, and after the answer of the ayes, ‘‘all 
those of the contrary opinion say no.” 

90. After a bill has passed, there can be no further 
alteration in any point. 

97. In putting a question to the House, the Speaker 
declares, whether the yeas, and nays have it by the 
sound, if, he be himself satisfied; or, if, he be not satis¬ 
fied, or, before any new member comes in, or, a new 
motion be made, a member rises, and says he is dissat¬ 
isfied, the Speaker is to divide the House. On a Division 
in the British Parliament one party goes forth, and the 
other stays in. One being gone forth, the Speaker ap¬ 
points two Tellers from the Affirmative, and two from tlie 
Negative side; who first count those sitting in the House, 
and then those count who went forth, as they come 
in and report the number to the Speaker. In the U. 
States Congress the process is shorter. The ayes first 
rise, and are counted standing in their places, by the 
Speaker. Then they sit, and the noes rise, and are 
counted in the same manner. 

98. If, any difficulty arise on a point of order, dur 


\ 


PARLIAMENTARY RULES. 


313 


ing the division, the Speaker is to decide peremptorily, 
subject to the future censure of the house, if irregular. 

99. The voice of a majority decides; but if, the house 
be equally decided, the question is lost. The former 
state of things, whatever it is, is not to be changed, ex¬ 
cept by a majority. In the Senate, the Vice-President 
has a casting voice. 

100. When from counting the House, on a division 
it appears, there is not a quorum, the matter continues 
in exactly the state in which it was before the divis¬ 
ion, and must be resumed, at that point, at a future 
day. 

101. On a question, whether a member having voted 
aye, may change his opinion, there is precedent that he 
may. 

] 02. A mistake in the report of the Tellers may be 
rectified after the report made. 

103. After the Bill has passed, and not before, the 
me to the bill may be amended, and is to be fixed by 
question. 

104. When either House of a Legislative body send 
a bill to the other, the latter may pass it with amend¬ 
ments. The bill is then sent back to the house in which 
it originated, where the House may either assent, or dis¬ 
sent to the amendments: the regular progression is for 
the first House to disagree to the amendments. The 
House which made the amendments insist on them. The 
other then insist on their disagreement The first then 
adhere. The time for insisting aud adhering may be 
prolonged, at pleasure, in order to keep the subject 
open.* 

105. To settle a difference of this kind, it is usual 

to appoint committees of comferences^ by each house. 
When such committees are appointed, they shall, at a 
convenient hour to be appointed, by the chairman meet 
in the conference chamber, and state to each other 
either verbally, or, in writing, as they choose, the rea¬ 
sons for, and against the amendment, and confer freely 
thereon.^ ; * 


* Jefferson’s Manual 113. ^ Joint Rules, and Orders of Congress. 

27 



814 


PARLIAMENTARY RULES. 


106. Either House may recede from its amendment, 
and agree to the bill, or, recede from their disagreement 
to the amendment, and thus pass the bill either abso¬ 
lutely, or, with an amendment. 

107. But, the House cannot recede from, or, insist on 
its own amendment, with an amendment for the same 
reason, that it cannot send to the other house an amend¬ 
ment to its own act, after it has passed that act. They 
may amend an amendment from the other house', because 
they have never assented to it; but, they cannot amend 
their own amendment, because, they have passed on the 
question, in that form. 

108. A motion to amend an amendment from the 
other house, takes precedence of a motion to agree, or, 
disagree. 

109. It is not the custom for one house to inform the 
other, by what members a bill has passed. Nor, when 
a bill from the other house is rejected, to give notice 
of it, but, it is rejected, without notice to prevent unbe¬ 
coming altercations. 

110. When bills are on their passage between the two 
Houses of a Legislative body, they should be on paper, 
and under the signature of the secretary, or, clerk of 
each house respectively. So also in all public meetings 
of any kind, all resolutions, acts, and motions should be 
in icriting, when offered, and recorded verbatim, that 
the true intent of the body, and its accurate history 
should be preserved. 

111. In the Houses of Congress, there is a joint Com¬ 
mittee of both Houses, ended the Committee on enroll¬ 
ed bills, whose duty it is to compare the enrolment, with 
the engrossed hills, and correcting any errors, which 
they may discover, make their report to their respective 
houses.* 

112. After a bill shall have passed both houses, it 
shall be duly enrolled on parchment, by the clerk of the 
House, in which it was passed, before it is sent, in the 
U. States, to the President for his signature, or where 
there is no signature of the Executive required, as in 


1 7 .Toint Rules. 



PARLIAMENTARY RULES. 


315 


Ohio, to the Secretary of State, or, other recording 
officer.* 

113. By the Constitution of the U. States,* each House 
of Congress is required to “ keep a journal of its pro¬ 
ceedings,’* and from time to time, publish the same. 
The same is usual with all Legislative bodies, 

114. If, a question be interrupted, by a vote to ad¬ 
journ, or, to proceed to the orders of the day; the ori¬ 
ginal question is not to be printed, in the journal, it 
never having been a vote, nor introductory to a vote; 
but if, it be suppressed, by the previous question, the 
first question must be stated, in order to introduce, and 
render intelligible the second. So also, when a question, 
is postponed, adjourned, or, laid on the table, the original 
journal, though not yet a vote must be expressed in the 
journals; because, it makes part of the vote of postpone¬ 
ment, and adjournment, or, lying on the table. When 
amendments are made to a question; those amendments 
are not to be printed separated from the principal ques¬ 
tion; but, only the question, as finally agreed <o, bythe 
House, There may be many questions proposed, which 
it would be improper to publish to the world, in the 
form, in which they are made.® 

115. On information of a mis-entry, or, omission of 
an entry in the journal; a committee may be appoint¬ 
ed to examine, and rectify it, and report to the House. 

116. A motion to adjourn simply, cannot be amended, 
by adding to “ a particular day.” To obtain this, there 
should be a previous resolution, that ^^when the house 
adjourn, it adjourn to a particular day.” On the 
an adjournment simply, it is to the next sitting day. If, 
a question be put for adjournment, it is no adjournment, 
till the Speaker pronounces it. 

117. By adjournment the condition of things is not 
changed; and when the body meet again,every thing is 
renewed, at the point, where it was left. The whole ses¬ 
sion of a Legislative body is considered in law, but one 
day, and has relation to the first day thereof. Congress 
may separate in two ways: 1st. by adjournment; next 


1 6 Joint Rule. 

3 Jefferson’s Manual 126. 


2 Const. Art. 1. Sect. 5. 




316 


PARLIAMENTARY RULES. 


by dissolution at the termination of tlieir legal existence; 
for they cannot constitutionally sit, beyond the period, 
for which they are elected. 

118. The Speaker or Chairman has a right to name 
any person to perform the duties of the chair;* but this 
substitution cannot extend, beyond an adjournment. 

- 119. All committees shall be appointed, by the Chair¬ 
man, or. Speaker, unless otherwise directed; in which 
case they must be appointed, by ballot, and a majority 
should be necessary to an election.^ 

120. In filling up blanks left in a bill, or, resolution, 
the vote must first be taken on the largest sum and 
longest time. 

The Rules above given are, for the most part, those of 
the British Parliament, and the American Congress, and 
have been adopted generally, in the State Legislatures, 
and in all corporate bodies, who assemble in a legisla¬ 
tive capacity. They are applicable, also, with the ex¬ 
ception of some obvious pecularities, to the conduct of 
business in Ecclesiastical-bodies, and in all assemblies, 
which profess to transact their business, with decorum, 
order, punctuality, and despatch. 

* Rules of the House 6. 2 ic^em. 7. 




APPENDIX. 

QUESTIONS FOR THE ASSISTANCE OF THE TEACHER. 


Ill asking these questions, the teacher should, as far as possible, vary 
them hj new examples^ where the subject admits of it. The application 
of rules to new examples is one of the best modes of ascertaining the 
extent, or, defects of a pupil’s knowledge. 

DEFINITIONS. 


What is Sovereignty? 1. 

Can a state be sovereign, when 
dependent on another ? 1. 

Can it when represented with for¬ 
eign powers, by another? 1. 
What is Government? 2. 

What is Law? 3. 

What is political law? 3. 

What is a Constitution? 4. 

Who makes it? 4. 

What is a Despotism? 5. 

What is a Monarchy? 6. 

Give examples? 6. 

What is a Republic? 7. 

How many kinds of Republics? 7. 
What is a Democracy? 8. 

What is an Aristocracy? 9. 

What words are Democracy, and 
Aristocracy derived from ? 8, 9. 
What is meant by a Party? 10. 
What by a I’action? 11. 
Whatismeantby Legislature? 12. 
What by Congress? 13. 

By Legislative? 14. 

By Executive ? 15, 

By Judicial? 16. 

By Statute Law? 17. 

By Common Law? 18. 

What is a Corporation? 19. 
What is aCharter? j20. 

What is it derived from? 20. 
What is a Court? 21. 

What is meant by a Municipal? 

22 . 27 * 


What is Jurisdiction? 23. 

What is an Impeachment? 24. 
What is a Verdict? 25. 

What is a Judgment? 26. 

What is a Crime? 27. 

What is Treason? 28. i 

What is Felony? 29. 

What is a Reprieve? 30. 

What is Diplomacy? 31. 

What is Revolution? 32. 

What is meant by Ex Post Facto 
33. 

What is a Retrospective? 33. 
What is a Bill of Attainder? 34. 
What is meant by the term Bill? 
35. 

What is meant by Revenue? 36. 
What is meant by a Treaty? 37. 
What is meant by Naturaliza¬ 
tion? 38. 

What is meant by Bankrupt and 
Bankruptcy? 39. 

What is meant by a Test Act? 40. 
What is meant by the Ballot? 41. 
What is meant by Quorum? 42. 
What is meant by Majority and 
Minority? 43, 

What is meant by Plurality? 44. 
What is meant by an Indictment? 
45. 

What is a Grand Jury? 46. 

What is a Tax? 47. 

Is an Impost, or Duty a Tax? 47. 
What is a Legal Tender? 48. 


318 


APPENDIX. 


What is a Legal Tender, in the anything else than Gold and 
United Slates? 48. Silver a Legal Tender? 48, 

Can the State Legislatures make 


QUESTIONS ON CHAPTER I. 


By whom was the continent of 
North America settled? 1. 

On what ground did England claim 

jurisdiction over N. America? 1. 

How did the Government of Eng¬ 
land confer her authority on the 
colonists? 1. 

How many different forms of gov¬ 
ernment were there in the col¬ 
onies? 2. 

How were the Charter Govern- 
,mcnts composed ? 3. 

Which were the Proprietary Gov¬ 
ernments? 4. 

What were the Royal Govern¬ 
ments? 5. 

How were they go-kerned ? 5. 

When did the first Confederacy 
take place? 6. 

Of what colonies was it compos¬ 
ed? 6. 

When was the next congress of 
Commissioners to meet? 7. 

When did the next congress assem¬ 
ble, and for what? 8. 

When was the next Congress? 9. 

When did the first Congress of the 
thirteen stales assemble at Phil¬ 
adelphia? 10. 

When was the Declaration of In¬ 
dependence issued? 10. 

In what year were the articles of 
Confederation formed ? 11. 

How long did they continue? 11. 

In what year did General Wash¬ 
ington address a letter to the 
stales, on the subject of a Con¬ 
federation? 11. 

What four things did he say were 
necessary to the well being of the 
United States? 11. 

At what time did the Legislature 


of Virginia recommend a meet¬ 
ing of commissioners to consid¬ 
er on the government? 13. 

In what year did the convention 
meet to frame the Constitution 
of the United States? 14. 

How many states were made ne¬ 
cessary to ratify the Constitu¬ 
tion of the United States? 15. 

In what year did the Constitution 
go into practical operation? 15. 

What were the chief points, in the 
Confederation of 1643? 17. 

Was this association a League, or, 
a Government? 18. 

What were its chief defects? 18. 

In what year was a plan for gen¬ 
eral Government made at Al¬ 
bany? 20. 

Did that plan go into effect? 20. 

What was the style of the Con*- 
federacy under the articles of 
Confederation? 23. 

What were the general principles 
of the Confederation, 1st as to 
Sovereignty? 23. 

As to its objects? 23. 

As to the privileges of citizens? 23. 

As to the management of general 
affairs? 23. 

As to treaties, and alliances? 23. 

As to common charges? 23. 

As to Peace and War? 23. 

As to public debts? 23. 

What were the chief defects of 
this confederacy? 25. 

Did these successive Confedera¬ 
tions grow stronger and approach 
nearer a general government? 
26. 

What are the propositions estab¬ 
lished in this chapter? 27. 



APPENDIX. 


319 


QUESTIONS ON CHAPTER IL 


What is the preamble to the Con¬ 
stitution? Repeat it? 28. 

What things are asserted, in this 
preamble? 29. 

What is 011:6 of the rulers for inter¬ 
preting laws? 31. 

Do the terms used in the preamble 
correspond with the ratifications 
by conventions? 31. 

How are the terms soveignity and 


Independence to be understood ? 
32. 

What does the first article of the 
Constitution relate to? 33. 
What the Second? 33. 

The Third? 33. 

The Fourth? 33. 

The Fifth ? 33. 

The Sixth ? 33. 

The Seventh ? 33. 


ARTICLE 1ST, OF THE CONSTITUTION. 


What is Section 1st of the IstAiv 
tide of the Constitution? 35. 

Is the Legislative body in France 
and Great Britain, divided into 
two bodies? 36. 

What is the 1st clause of the 2d 
Section? 37. 

How long is the representative 
chosen for in England ? 38. 

What is the 2d clause to the 2d 
Section? 39. 

Is one who resides at the seat of 
government, on official business 
an inhabitant of the state, 
whence he came? 41. 

How are representatives, and di¬ 
rect taxes apportioned? 42. 

When and how often must the 
enumeration be taken? 42. 

Who are the other persons’’' 
mentioned in the Constitution 
as representatives? 43. 

Are (he electors for “ the most 
numerous branch of tho state 
legislatures” the same in all the 
states? 44. 

Is the mode of electing representa¬ 
tives to Congress the same in all 
the slates? 45. 

If Congress divide the whole pop¬ 
ulation of the U. States, by a 
certain number, give representa¬ 
tions for the quotient, and then 


give representatives to the /arg- 
est fractions will that be consti¬ 
tutional ? 46. 

Who objected to such an Act? 46. 

Has the ratio of representation 
always remained the same? 47. 

When vacancies happen in the 
representation of a state how 
are they to be filled up 48. 

Have such vacancies occured ? 49. 

Who has the power of choosing 
the Speaker of the House of 
Representatives? 50. 

Who has the sole power of im¬ 
peachment? 50. 

Is there any mode, except im¬ 
peachment, by which the Judges 
can be made responsible? 51. 

Have there been any impeach¬ 
ments ? of whom ? 52. 

What is the mode of Impeach¬ 
ment? 53. 

How many does it require to make 
a conviction? 53. 

What is the 1st clause of the 3d 
Section ? .54. 

Do the Senators vmte by states, or 
by personsi 55. 

How are the Senators chosen? 56. 

Into how man)'^ classes were the 
Senate on their first election 

’’chosen? 57. 



320 


APPENDIX. 


When are the seats of these clas3*« 
es vacated 57. 

How many of the Senate are elect¬ 
ed at one time? 57. 

If vacancies happen during the 
recess of the legislature who 
shall fill them? 57. 

How long shall such appointments 
last? 57. . 

Does more than one vacancy hap¬ 
pen, at once, in the represen¬ 
tation of one state? 58. 

Can the Governor of a slate make 
a temporary appointment, in 
anticipation of a vacancy? 59. 

How old must a senator be when 
he is elected ? 60. 

How many years a citizen of the 
United States? 60. 

Can he be an inhabitant of a dif¬ 
ferent state than the one from 
which he is elected? 60. 

VV’^ho is President of the Senate? 

6 - 2 . 

When has he a vote? 62. 

Has the President of Senate, the 
power of preserving order? 64. 

When the Vice President is ab¬ 
sent, oracling as President, who 
chooses the officers of the Sen¬ 
ate? 65. 

Who has power to try Impeach¬ 
ments? 67. 

Are they under oath? 67. 

Who presideswhen the President 
is tried'* 67. 

Whence is this mode of Impeach¬ 
ment derived ? 68. 

Why does the chief Justice pre¬ 
side on the trial of the Presi¬ 
dent'* 69. 

How far does Judgment extend in 
case of Impeachment? 70. 

How far does it extend in Eng¬ 
land ? 70. 

Is the party convicted liable to 
trial at law, after conviction? 

70. 


How is the vote taken in the Sen¬ 
ate, on impeachments? 71. 

Who prescribes the times, places, 
and manner of holding elections 
for Senators and representa¬ 
tives? 72. 

Who may alter this law and with 
what exceptions? 72. 

Has Congress ever exercised this 
power? 73. 

Is the mode of choosing them 
in the different states thesatne? 
73. 

How often must Congress assem¬ 
ble? 74. 

When must they meet? 74. 

May Congress change? 75. 

Who is the judge of the election of 
its members in each house ? 76. 

How many shall constitute a quo¬ 
rum'* 76. 

How many are necessary to ad¬ 
journ and compel the attend¬ 
ance of rnsmbers? 76. 

What would be the consequence 
of having more, or, less, as a 
quorum? '77. 

How do the House and Senate 
decide an election? 78. 

Who determines the rules of their 
proceedings? 79. 

Can the House punish, or, expel 
its members for disorderly beha¬ 
viour? 79. 

Was this power ever exercised ? 
81. 

When? 81. 

For vhat things may a member 
be expelled? 82. 

Is there any power given to pun¬ 
ish contempt^ 83. 

Was this ever exercised? 84,85, 

86 . 

Must each house keep a journal 
and publish it? 87. 

How many may demand the yeas 
and nays ? 87. 


APPENDIX. 


321 


Can either house adjourn without 
the consent of the other89. 

Can they adjourn to a different 
place ? 89. 

How are members of Congress to 
be compensated? 91. 

In what cases may they be arrest¬ 
ed? 91. 

Can they be arrested in going to 
and from Congress 91. 

Can they be questioned for things 
said in debate ? 91. 

What kind of compensation do 
members of Congress receive? 
92. 

Whence is the privilege from 
Arrest derived? 93. 

What can a member do if he is 
arrested unlawfully ? 94. 

Is the member privileged before 
he is sworn? 96. 

What are breaches of the Peace? 
97. 

Does this privilege extend beyond 
legislative duty? 98. 

Under what circumstances can 
or, cannot a member of Con¬ 
gress be appointed to office ? 99. 

Can a person holding office under 
the U. States be a member of 
Congress? 99. 

Is this provision like that of the 
British Parliament? 101. 

Where must bills for raising re¬ 
venue originate? 102. 

Whence is this derived? 103. 

Do Bills for raising a revenue in¬ 
clude those relating to the Post 
Office, Mint, or Public Lands? 
104. 

Must a law which has passed 
Congress be presented to the 
President for his assent'* 105. 

If he docs not approve it, what 
must be done ? 105. 

How many are necessaiy to pass 
a bill, when the President ob¬ 
jects? 105. 


How is the vote then taken? 105. 

Within how many days must the 
President return a bill with his 
objections? 105. 

Is Sunday counted as one? 105. 

Suppose Congress prevent its re¬ 
turn, by adjournment? 105. 

Has the power of returning Bills, 
by the President ever been ex¬ 
ercised ? K)6. 

Is the President’s signature re¬ 
quired totheorders, resolutions, 
or votes, which require the con¬ 
currence of both houses? 109. 

Do those “ orders, resolutions, or 
votes” include those which re¬ 
late to the separate government 
of each house? 110. 

What power has Congress over 
Taxes? 111. 

For what purpose may they levy 
Taxes? 112. 111. 

How many kinds of Taxes are 
there ? 113. 

What are direct Taxes? 113. 

What are indirect Taxes? 113. 

What effect has indirect taxes 
upon the price of articles? 114. 

What is the difference between 
the kinds of taxes? 114. 

Are indirect Taxes voluntary? 
115. 

What is the meaning of “Im¬ 
ports, and duties”? 116. 

What is the meaning of Excise ? 
117. 

What effect had an Excise in the 
U. States? 117. 

Must duties and Excises be uni¬ 
form'* 118. 

Is a duty on “all carriages” a di¬ 
rect tax? 118. 

Does the power of Congress to tax 
extend over the district of Co¬ 
lumbia? 119. 

Can the “ United States” borrow 
money? 120. 


322 


APPENDIX. 


What power have they over Com¬ 
merce ? 121. 

Does the term “ Commerce” in¬ 
clude “navigation” ? 123. 

What kind of commercial inter¬ 
course is meant, by the term, to 
“regulate commerce”? 124. 

Does this power include that of 
“ prescribing a rule” by which 
commerce is to be governed? 
.125. 

Does it extend to steam vessels? 
126. 

Has Congress exercised these 
powers? 127. 

Is an Embrego act constitutional? 
128. ' 

Has Congress power to lay duties 
for the protection of manufac¬ 
tures? 129, 130, 131, 132. 

What has the Supreme Court de¬ 
cided? 1.34, 135, 136. 

Has Congress levied taxes for 
such a puipose? 138. 

Does the power to regulate com¬ 
merce extend to the coasting 
trade? 140. 

To what other objects? 141. 

What right have the U. States 
over the Indian Lands? 143. 

Is an Indian Tribe a foreign state? 
144. 

What are they? 144, 145. 

What power have Congress over 
naturalization? 146. 

Has Congress exercised this pow¬ 
er? 146. 

What classes of persons come 
within these provisions? 147. 

What are the provisions of these 
laws, in respect to persO'iis of 
full age? 148. 

What in respect to free white 
Minors? 149. 

What in respect to the children of 
naturalized persons? 150. 

What in respect to the children 


of those, who have been citi¬ 
zens of the U. States? 151. 

What of an alien die before the 
act is completed ? 152. 

Has an alien power to hold real 
estate? 153. 

What power has Congress over a 
general Bankrupt law? 154. 

What points have the Supreme 
Court decided? 155. 

What power have Congress over 
Coin; 156. 

What over weight, and measure? 
156. 

Has Congress exercised this pow¬ 
er? 157. 

Can any one bring gold and silver 
to be coined ? 157. 

What is the Unit of American 
Coin? 157. 

What parts of that unit are all 
other coin? 157. 

Can Congress punish the counter¬ 
feiting of the securities, and cur¬ 
rent coin of the U. States? 158. 

What power has Congress over 
Post Offices and Post Roads? 
159. 

What is meant by establishing Post 
Roads and Post Offices? 160. 

Can Congress secure, by law, the 
safety and transportation of the 
Main 161. 

Is the robbery of the Mail felony ? 
161. 

Can a man take a stolen horse 
out of a stage ? 161. 

Can the driver be arrested on civil 
process? 161. 

Can a felon be taken in the Mail 
stage? 161. 

Under what head is claimed the 
riglit to make Internal Improve¬ 
ments? 162. 

When was the first Act of Congress 
on this subject passed? 163. 

What was the next step? 164. 

What was the next act ? 165. 


APPENDIX. 


323 


Mentiort other acts of Congress 
on this subject? 166, 167. 

W hat Bill was relumed by Mr. 
Madison? 168. 

What did Congress, then do ? 168. 
What did Mr. Monroe say, on 
this subject? 169. 

What did the House then do? 

169. 

What was the policy of the gov¬ 
ernment, from this time on to 
President Jackson’s term ? 170. 
What did General Jackson do? 

170. 

What is the result of the Legisla¬ 
tive History, on this subject? 

171. 

What were the Executive opin¬ 
ions of Washington, Adams, 
and Jefferson? 172. 

What were Mr. Madison’s opin¬ 
ions? 173, 174. 

What Mr, Monroe’s? 174. 

What Mr. J. Q- Adams’s? 175. 
What General Jackson’s? 176. 
What then, is the conclusion, as 
to Executive opinions? 177, 
178. 

What Judicial principles are ap¬ 
plicable to it? 179. 

What power has Congress to pro¬ 
mote the sciences, and arts? 
180. 

What may a Patent be obtained 
for? 182. 

How long? 182. 

How long may Copy Right be se- 
curred for? 183. 

Can Congress make a Tribunal 
inferior to the Supreme Court? 
185. 

What power have they over pira¬ 
cies and felonies on the High 
Seas? 184. 

What is Piracy? 185. 

Ifl piracy committed against any 
particular state? 185. - 


Can one commit piracy, by act¬ 
ing under a national commis¬ 
sion? 185. 

What is Felony? 186. 

What is meant by the High 
Seas} 187. 

Who holds jurisdiction between 
High and Low water mark? 
187. 

Who has power to declare war? 
190. 

To grant Letters of Marque, and 
Reprisal, and make rules con¬ 
cerning captures on land and 
water? 190. 

Are such powers vested in the 
states? 191. 

What would Letters of Marque 
produce? 192. 

Does the power of making rules 
extend to theconfiscation of ene¬ 
my’s property ? 193. 

Who has power to raise and sup¬ 
port armies? 194. 

How long can an appropriation 
be made for? 194. 

Why was the time limited ? 195. 

Who has power to provide and 
niHintain a navy? 196. 

Who has power to make regula¬ 
tions for these forces? 197. 

Do such rules govern the militia, 
as well, as the regulars in ser¬ 
vice? 197. 

By whom are crimes committed 
on board public ships of war 
punishable? 198. 

How is it with the public ships of 
sovreigns? 198. 

Who can provide for calling forth 
the militia to execute the laws 
of the Union ? 199. 

To suppress insurrections? 199. 

Or, rc|)el invasions? 199. 

Who has power to organize, and 
govern the militia? 199. 


324 


APPENDIX. 


Who has power to officer them? 

199. 

Has this power been exercised? 

200 . 

Who is to decide the militia 
are to be called out? 201. 

Whaldid the Massachusetts Court 
hold? 201. 

What the Supreme Court? 201. 

Can the President delegate his au¬ 
thority, or, detach parts ol' the 
militia corps? 204. 

When are the militia to be con¬ 
sidered in actual service, or, 
national militia ? 305. 

Has the militia ever been called 

, out ? 206. 

If court martial fine a man 
when liable to militia duly, 
what are they? 207. 

Has Congress exclusive legislation 
over any district? 208. 

Where is that terriloiy? 209. 

Over what other places can they 
exercise exclusive authority? 
208. 

Has any such authority been 
granted ? 210. 

What laws may Congtess enact 
to carry into execution the pow¬ 
ers vested by the Constitution? 
208. 

Fs taxation included in exclusive 
jurisdiction? 211. 

Has Congress genera? jurisdiction, 
within such jurisdiction? 212. 

Are the inhabitants of such places 
still inhabitants of the states? 
21.3. 

H as any diversity of opinion risen 
about the power to enact laws 
necessary and proper'^ 214. 

On what snoject did this first arise ? 
215. 

On what ground was a National 
Bank opposed”* 215. 

On what supportefl ? 215. 


Did tlue President give it his sanc¬ 
tion? 215. 

Who was President? 215. . 

Was that Bank rechartered? 216. 

When was the next bank charter¬ 
ed? 217. 

Did that Bank apply for a Rechar- 
tcr?218. 

When? 218. 

Did it pass? 218. 

In what case did the Supreme 
Court decide itsconstitionality? 
219. 

What pointsdid they decide ? 219. 

What was decided in Osborne’s 
case”* 22(J. 

How do the authorities stand, in 

• respect loa National Bank? 221. 

Has Congress a right to create a 
priority of payment in their 
favor? 222. 

What is the principles of this? 
222, 223. 

Is any Ken created by this prefer¬ 
ence? 223. 

Wliai are tlie limits of this priori¬ 
ty? 224. 

Has the U. States the right of sue- 
ing in their own Courts? 224. 

Has the goveinment any right to 
acquire foreign territory ? 226. 

Has there been any other exercise 
of implied authority ? 227. 

Could Congress have prohibited 
the importation of persons be¬ 
fore 1808? 228. 

Who were meant? 229. 

Can Congress suspend the Habeas 
Corpus? 230. 

In what cases may they suspend 
it? 230. 

What is a Writ of Habeas Cor¬ 
pus? 231. 

What is the object of the Writ? 
231. 

On whose application may the 
writ be granted? 231. 


APPENDIX. 


325 


y* 


Whence is the Writ of Habeas 
Corpus derived? 232. 

Has it ever been suspended? 233. 

May Congress pass a Bill of at¬ 
tainder, or, Ex Post Facto Law? 
234. 

What is a Bill of Attainder? 234. 

What is ?ii\ ex post facto 234. 

Can a direct tax be laid except in 
proportion to the Census ? 235. 

May a duty be lai-d on articles 
exported from a state? 236. 

Can any preference be given by 
a regulation of commerce to the 
ports of one state over another? 
236. 

Or, shall vessels bound to one state 
be obliged to clear in another? 
236. 

What would be the consequence 
of such preferences ? 236. 

In what manner is money to be 
drawn from the Treasury? 237. 

What account must be rendered 
of it to the public? 237. 

What was the object of this pro¬ 
vision ? 237. 

For what purpose was the account 
of receipts, and expenditures re¬ 
quired^ 238. 

Can the (J. States gi-ant titles of 
nobility? 239. 

Can any person holding an office 
of profit, or trust under them, 
accept of presents, emoluments, 
or, offices, from foreign gov¬ 
ernment'^ 239. 

Can a citizen of the U. S. accept 
a title of nobility from a foreign 
country without forfeiting his 
citizenship? 240. 

Why were these provisions made ? 
240. 

Can a state enter into treaty, or, 
alliance? 241. 

Or, grant Letters of Marque ? 241. 

Or, coin money? 241. qq 


Or, omit bills of credit? 241. 

Or, malce anything but gold and 
silver coin a tender in payment 
of debts;—pass any bill of at¬ 
tainder, or, ex post facto law? 
241. 

Can they impair the obligation 
of contracts? 241. 

Is the power to make treaties a 
part of sovereignty ? 242. ^ 

What are Letters of Marque and 
Reprisal ? 243. 

In whom does the right to issue 
them lie ? 243. 

Is the right of coinage a part of 
sovereignty, or, not? 244.. 

In whom is it vested ? 244. 

Why? 244. 

What is a Bill of Credit? 245. 

Must a Bill of Credit be made a 
legal tender? 246. 

What was the object of this pro¬ 
vision? 247. 

Why should nothing hot gold and 
silver be a legal tender? 248. 

What is a contract? 251. 

What kinds of contracts are there 
in respect to execution!; 252. 

What is an executing contract ? 
252. 

What is a contract executed! 253. 

What is a Grant? 254. 

What does a contract executory 
convey? 254. 

How else are contracts divided ? 
255. 

What are express contracts? 255. 

What are implied contracts? 255. 

Are contracts, and compacts dif¬ 
ferent things? 256. 

Does contract in the constitution 
mean a particular kind ? 257. 

Can a Grant be impaired by the 
states? 257. 

Give an example? 257. 

What kinds of obligations have 
contracts? 258. 


* 


326 


APPENDIX. 


Which of these is meant, by the 
Constitution] 258. 

If a contract is illegal, has it any 
obligation] 258. 

Can a moral obligation be impair¬ 
ed by civil law] 259.. 

Whatdoesobligalion imply] 262. 

What is the source of obligation, 
according to Blackstone ] 262. 

In what does civil obligation then 
consist] 264. 

Is a legislative grant but an ir¬ 
revocable title] 269. 

Can a legislature repeal acts of 
Incorporation] 27U. 

Are all retrospective laws Ex 
Post Factol 271. 

Are there any Retrospective laws 
a legislature may pass] 271. 

Cana state lay impost dutieswith- 
out consent of Congress] 271. 

May they to execute the Inspec¬ 
tion Laws] 272. 

To whose use shall the proceeds 
of such duties go] 272. 

Can a state lay duties on tonnage, 
or, keep troops] 272. 

Can they enter into treaties with 
one another] 272. 

Can they enter into war, when 
not invaded] 272. 

Why were these restrictions laid 
on the states] 273. 

What is the object of on Inspec¬ 
tion law] 274. 

Is a Tax levied by way of License, 
on the Importer, by a state con¬ 
stitutional] 275. 

Can a State tax Stock issued for 
U. S. Loans? 277. 

What are Tonnage duties? 278. 

Does the prohibition to keep troops 
extend to a Municipal guards 
279. 

What compacts, and agreements 
are meant in this clause] 280. 

Can a state contract the exercise 


of an authority by the general 
government] 281. ‘ 

Can they annul the judgments, or 
determine the jurisdiction of 
the courts of the Union ? 282. 

Can a state interfere with seizures, 
made by revenue officers] 283. 

Can a state issue a Mandamus to 
an officer of the U. States? 284. 

Have Stale Laws no operation 
upon the rights, or, contracts of 
the U. Stales? 285. 

Jlrlicle 2d. In whom is the Exe~ 
cutive Power vested ] 286. 

How long does he hold his office? 
386. 

Why is the Executive elective? 
287. 

Is this the same plan adopted in 
Europe? 287. 

Is the Executive accountable ^ 
287. 

How] 287. 

How are Electors for President 
chosen] 288. 

How many are in each state ? 288. 

May the legislature itself appoint 
the electors] 289. 

Can a person holding an office of 
profit, or, trust under the U. S. 
be appointed an elector] 288. 

Did the Electors vote for a Vice 
President separately formerly? 

290. 

What was the evil consequence? 

291. 

What is the 12th Amendment to 
the Constitution? Give it? 293, 
294. 

What is the effect produced, by 
this amendment? 295. 

Who fixes the time of choosing 
the electors? 297. 

And the time, in which Iheyshall 
give their votes? 297. 

Must that time be the same 
throughout the U. Slates? 297. 


APPENDIX. 


327 


Is the time of choosing electors, the 
same in different states'? 297. 

Who is eligible to the office of 
President? 298. ' 

At what age may one be eligible 
to that office? 298. 

What is meant by residence in 
the U. States? 299. 

In case of the death, or, disabili¬ 
ty of the president? who is to 
exercise the duties of his office ? 
300. 

Who may provide for the death, 
or, disability of both President 
and Vice President? 300. 

What have Congress provided, in 
such a case ? 300. 

Does the President receive a com¬ 
pensation ? 302. 

Can it be increased, or, diminish¬ 
ed during the period for which 
he is elected? 302. 

Can he receive within that period 
any other emoluent? 302. 

What is the salary of the Presi¬ 
dent? 302. 

Does he take an oath of office? 

What is it? 303. 

Who is Commander of the U. S. 
4 rmy and Navy'^ 304. 

Who commands the Militia, when 
in the U. States service? 304. 

Who has pow'er to grant pardons? 
304. 

Can the President delegate his 
power to command? 305. 

Who can make treaties? 307. 

How many of the Senate must 
concur with the President ? 307. 

Who can appoint ambassadors, 
public ministers, and consuls? 
307. 

Who appoints other officers estab¬ 
lished, by law? 307. 

In whom else may the appoint¬ 
ment of inferior officers be vest¬ 
ed? 307. 


Has the House of Representatives 
any power over the validity of 
Treaties? 309. 

Why has the President the ap¬ 
pointment of the officers? 310. 

Has the President the power of 
removing the officers? 311. 

Can the Supreme Court issue a 
Mandamus io compel the deliv¬ 
ery of a commission? 314.-' 

How are vacancies filled, which 
occur when the Senate is not 
in session? 314. 

When do the commissions expire ? 

315. 

Can the President appoint, and 
commission Ambassadors, dur¬ 
ing the recess of the Senate? 

316. 

What other duties has the Presi¬ 
dent? 317. 

Who receives Ambassadors? 317. 

What does the President send to 
Congress, on the first day of the 
session ? 218. 

Has the President ever called an 
extraordinary session of Con¬ 
gress? When? 319. 

Can the President reject, or, dis¬ 
miss an ambassador? 321. 

How can the President and Vice 
President be removed from of¬ 
fice? 323. 

Article Sd. The Judiciary. In 
whom is the Judicial power ot 
the U. S. vested ? 324. 

How long do the Judges hold their 
offices? 324. 

Have they any compensation? 
324. 

Can it be diminished while they 
are in office ? 324. 

By whom is the Supreme Court 
ins ti luted 1 325. 

By whom organized ? 325. 

How often does the Supreme Court 
sit? 325. 


328 


APPENDIX. 


What inferior -courts have been 
organized by Congress? 3:26. 

Of whom is the Circuit Court 
composed? 326. 

How many circuits are there ? 326. 

How is the District Court com¬ 
posed ? .327. 

How many terms are held? 327. 

Are there any limits put to a 
Judge’s age? 327. 

How far does the Judicial power 
of the U. S. extend ? Repeat 
clause 2d. Sect. 2d? 329. 

What does the 1 llh Amendment 
to the Constition declare? 329. 

Who construes the Constitution 
and Laws of the U. States ? 330. 

Can the state courts construe 
them, when they come incident¬ 
ally m question} 330. 

To what Laws do treaties, public 
ministers, and admiralty juris¬ 
diction belong? 333. 

Which is the National Court of 
the U. Stales? 331. 

Is this court superior to the state 
courts? 332. 

What is the function of a court ? 

333. 

Does the Constitution recognize 
the existence of the common 
Law? 334. 

What is a case} 3.34. 

In what three respects is Juris¬ 
diction to be considered? 336. 

What parlies come within the 
Jurisdiction of the Supreme 
Court? 336. 

By whom are the rights, duties 
and powers of public ministers 
determined ? 3.37. 

Are Consuls Ministers? What 
are they? 337. 

Are Indictments cases affecting 
ambassadors? 337. 

Can individuals bring suit against 
the U. States? 338. 


What remedy has a citizen 
against the national government 
for wrongs? 338. 

Can the government commit a 
personal wrong} 339. 

Is an ageiit of government com¬ 
mitting wrong liable? 338. 

What is the remedy in case of 
contracts? 340. 

Are the states subject to the de¬ 
cision of the Supreme Court? 
.341. 

When is a state deemed a party? 

341. 

Does a government exercise any 
sovereignty, as the member of 
a Corporation? 341. 

When Jurisdiction depends on 
the party, how is he known? 

342. 

Who is a citizen, and how does 
he change his citizenship ? 343. 

What constitutes a change of re¬ 
sidence? 343. 

Does a citizen of one slate cease 
to be a citizen before he becomes 
a citizen in another slate ? 343. 

Does residence in a foreign coun¬ 
try take away Citizenship ? 343. 

Is a citizen of a state a citizen of 
the U. States? 343. 

Is a naturalized citizen, the citi¬ 
zen of a stale ? .343. 

Does a naturalized citizen be¬ 
come entitled to sue in the U. 
S. courts, by residence in a 
particular state ? 344. 

Is a Corporation a citizen of a 
state? 345. 

When can citizens of the same 
state be parties to a suit in the 
Supreme Court? 346. 

Who is an alien? 347. 

How does he cease to be an alien? 
347. 

Can alien enemies sue ? 349. 


APPENDIX. 


329 


How is jurisdiction divided, in 
respect to subject matter? 350. 
In what cases has the court ori¬ 
ginal jurisdiction? 350. 

Have Congress confirmed this ju¬ 
risdiction? 350. 

Can Congress change this juris¬ 
diction ? 351. 

What is appellate jurisdiction? 
354. 

Can appellate jurisdiction be ex¬ 
ercised in more than one form ? 

354. 

Wh.at are the most usual modes 
of exercising such jurisdiction ? 

355. 

Does the appellate jurisdiction of 
the Supreme Court extend to 
the decisions of the State 
Courts? 356. 

If the Supreme Court of a state 
reverse the decision of an infe¬ 
rior court, and the supreme court 
of the U. States reverse the lat¬ 
ter, which decision prevails? 
357. 

How may jurisdiction in respect 
to locality? .358. 

What are the limits ofjurisdiction 
to the U. States Courts? 359. 
Of what has the District Court 
cognizance ? 360. 

What court has jurisdiction on 
the high seas? 361. 

Can the criminal jurisdiction of 
the U. States be delegated to 
State Courts? 362. 

Suppose one is entered in one 
court, and tried in another court 
of concurrent jurisdiction, what 
can he do? 364. 

Can the state annul the judgments 
of the U. States Courts, or, de¬ 
stroy the rights acquired under 
them? ,368. 

Can state courts affect in any 

25^ 


manner the proceedings of tha 
courts of the U. States? 368. 

Can the national courts in any 
way interfere with the proceed¬ 
ings of state courts? 369. 

What is the difference between 
Instance and Prize courls? 371. 

What court has this jurisdiction 
in the U. States ? 371. 

How far does the prize jurisdic¬ 
tion extend ? 372. 

Does a prize court act upon the 
thingy or, the person^ 373. 

How for does the jurisdiction of 
the admiralty extend on the sea 
shore? 374. 

How for does admiralty jurisdic¬ 
tion extend? 375. 

Of what do the Instance courts 
take cognizance? 377. 

Does the appellate jurisdiction of 
the Supreme Court extend to 
the verdict, of juries? 380. 

What is the amendment to the 
Constitution in this respect? 
380. 

How may facts be examined at 
Common Law? 380. 

Can the judges be called upon for 
other than Judicial duties? 
,383. 

What power have they to protect 
their own officers? 382. 

By vvhom must crimes be tried ? 
.383. 

Can they be tried, in a different 
place from that where commit¬ 
ted? ,383. 

In what manner must a person 
be charged beforehecan be held 
to answer for an infamous 
crime? 384. 

Can one be twice put in jeopardy 
for the same offence? .384. 

Can ho be compelled to testify 
against himself? .384. 

Or be deprived of life, liberty, or, 


330 


APPENDIX. 


a trial, by a jury of the neigh¬ 
bors? 385. 

In what instrument is the trial 
first established ? 386. 

JBy wliom must a person be charg¬ 
ed wiih an offence? 387. 

What is the form of this charge 
called ? 387. 

What is a Grand Jury? 387. 

What is the duty of a Grand 
Jury? 387. 

What is the mode of their proceed¬ 
ing? 387. 

How is the trial by Jury conduct¬ 
ed? 391. 

In what does treason consist? 
392. 

How many witnesses are neces¬ 
sary to a conviction of treason ? 
392. 

Does the attainder of treason work 
corruption of blood, or, forfei¬ 
ture? 292. 

What is treason? 290. 

What is the punishment of trea¬ 
son? 393. 

What is meant by corruption of 
blood ? 394. 

Can astate punish treason against 
the U. States? 395. 

mRrticie Ath. What credit is to be 
given in each state to the pub¬ 
lic acts, records, and judicial 
proceeding of other states ? 396. 

Who may prescribe the manner, 
in which such acts maybe prov¬ 
ed? 396. 

How are the laws of foreign na¬ 
tions proved? 397. 

What effect has foreign judgments 
in England, and tlie U. States? 
397. 

What effect has a domestic judg¬ 
ment? ,397. 

Are domestic judgments on a dif¬ 
ferent footing from foreign judg¬ 
ments? 398. 


Are they re-examinable in anothet 
state? 398. 

What privileges have citizens of 
one state, in another? 399. 

Can a person fleeing from justice, 
in one state; be reclaimed in 
another? 399. 

Can a person held to labor, by the 
laws of ono state, and escaping 
into another, be discharged from 
such labor? 399. 

Is a citizen of a state a citizen of 
the U. States? 400. 

To whose satisfaction must proof 
of slavery, in case of escape 
and demand, be made? 402. 

Can new states be admitted into 
the Union? 403. 

Can new states be formed with 
the jurisdiction of other states? 

Can it be formed of the juris¬ 
diction of two or more states, 
without the consent of the leg¬ 
islatures? 403. 

Or of Congress ? 403. 

Who has power to make rules for 
the territory of the U. States? 

403. 

Is there any new principle con¬ 
tained, in the power of admit¬ 
ting new states into the Union ? 

404. 

Are Congress obliged to admit 
new states'] 404. 

Was the Ordinance of 1787, in 
relation to the North-Western 
Territoiy, passed before the 
adoption of the Constitution? 

405. 

What are the leading features of 
ordinance? recite them? 406. 

What is the limit of the power of 
Congress over the territories ? 
407. 

Is that the case where they merely 
hold land for a fort, or, arse¬ 
nal? 407. 


APPENDIX. 


331 


Can a restriction upon slavery be 
imposed upon a state entering 
the Union? 408. 

Does the U. States guarantee to 
the stales a Republican form of 
government? 410. 

Is the U. States bound to defend 
the states against invasion, and 
domestic violence? 410. 

In what manner can the Consti¬ 
tution be amended? 411. 

How many states must ratify an 
amendment to the Constitution 
to make it valid? 411. 

Can any amendment be made 
which shall deprive a state of 
its equal representation in the 
Senate? 411. 

Are amendments of the same 
force, as the Constitution itself? 
412. 

Does an amendment require the 
assent of the President'^ 412. 

What are the three limitations on 
amendments? 413. 

Art. 6th. Were debts contracted 
before the adoption of the Con- 
stitiition, vali d afterwards ? 414. 

Do national obligations, change, 
where the form of government 
changes? 414. 

What is the supreme law of the 
land ? 415. 

Are the Judges in the state bound 
by it ? 415. 

Are ’ the treaties a part of the su¬ 
preme law? 416. 

Are the laws of the U. States made 
under the Constitution a part of 
the supreme law? 417. 

Has every court power to declare 
unconstitutional laws void? 
417. 

Are executive, and judicial offi¬ 
cers of the U. States, and states 
bound by any obligation to sup¬ 
port the Constitution? 418. 


Can any religious test be required 
of an officer in the U. States ? 
419. 

Art. 7th. By how many states was 
it necessary, that the Constitu¬ 
tion should be ratified ? 422. 
Were there any amendments 
made to the Constitution? 423. 
What is the 1st amendment? 
Recite it? 424. 

What is the freedom of speech, 
and the press? 425. 

What is the 2d Amendment? 427. 
What is Militial 427. 

What is the 3d Amendment? 428. 
What is the 4th Amendment? 
429. 

What is the 8th Amendment? 

431. 

Does this apply to the state, or, 
national government? 431. 
What is the 9th Amendment? 

432. 

What is the 10th Amendment? 

433. 

What is the source of political 
power in the U. States? 433. 
Ratifications.^ Chapter 3rf. When 
the convention had formed the 
constitution what did they do, 
to put it.in operation? 436. 
What did Congress do? 437. 
What did the states do, under the 
resolution of Congress? 438. 
Which was the first state that rati¬ 
fied the Constitution? 439. 
Second? 440. 

Which was the 6lh? 444. 

Did Massachusetts propose any 
amendments? 444. 

Which of those recommendations 
was adopted 447. 

Which was the 8th state ratifying 
the constitution? 449. 

Did S. Carolina propose any 
amendments? 449. 

Weve they ever adopted? 449. 


332 


APPENDIX. 


Which was the 9th sta,te ratifying 
the Constitution? 450. 

Were any x\inen(]ment3 proposed 
by N. fla.npshire ^ 450. 

Did Virginia and N. York make 
any declaration in respect to 
the powers of the Constitution ? 
451, 45:2. 

What two states ratified after the 
Constitution went into opera¬ 
tion? 45.9, 455. 

At what day and year, did the 
Constitution go into effect? 454. 

To whom was the Constitution 
addressed, and by whom? 456. 

Whot was said by Washington 
to be the object, and views of 
those, who framed the Constitu¬ 
tion ? 457. 

What did the first Congress do, in 
relation to amendments? 459. 

Which was the Jirst neiv state 
that joined the Union? 460. 

How do the ratifications com- 
mejice, and terminate? 461. 

Theorif of State Governments. 
Did the states make new Con¬ 
stitutions'^ 463. 

What state did not? 463. 

Is there any difference in princi¬ 
ple., between the state constitu¬ 
tions, and those of the Nation¬ 
al Constitution? 464. 

Under the Constitution of New 
York, in what branches is pow¬ 
er vested ? 468. 

In whom is legislative power vest¬ 
ed ? 468. 

Of how many does the Senate con¬ 
sist? 468. 

How, and for how long are they 
chosen ? 468. 

How many constitute a quorum? 
468. 

State the principal features of the 
Legislative power? 468. 


What are the qualifications for 
voters, in N. York? 469. 

Are elections by ballot? 469. 

In whom is the executive power 
vested ? 470. 

What are ihe qualifications for 
Governor? 470. 

What are his powers? 470. 

Who holds appointing power, in 
N. York ? 471. 

How is the Judiciary composed ? 
472. 

Is there any obligation, by the 
Legislature to support the Con¬ 
stitution of the U. States? 473. 
In what particulars is the Consti¬ 
tution of N. York like the Con¬ 
stitution of the U. States? 477, 
478, 47.9, 480, 481, 482. 

What is the chief difference be¬ 
tween the state, and national 
constitutions? 483. 

What is the object, and extent of 
state legislation? 484. 

What are the powers of the state 
governments, in general ? 485. 
What is the most important pow¬ 
er of the state governments, in 
respect to the elective purchase ? 

486. 

What in respect to the Senate? 

487. 

What in choosing the President? 

488. 

What in respect to laws? 489. 
What arc the first class of laws, 
which the states may pass? 490. 
What is the next class? 491. 
What is the 3d class? 492. 

What is the 4th class? 493. 

What other powers are committed 
to their charge? 494, 495. 

In what do the state constitutions 
agree ^ 497. 

What is the greatest difference 
between the state constitutions ? 
498. 


APPENDIX. 


333 


What is the qualification for a 
vote, in N. Hampshire? 498. 

What in Ohio? 499. 

What in Virginia? 499. 

What states have courts of 
Chancery ? 502. 

What courts of Probate') 503. 

In what state does the Civil law 
prevail? 506. 

What form of government is that 
of the U. States? 508. 

Prove that ? 508. 

What kind of Republic is it? 
509. 

Prove this from the Constitution? 
509. 

What kind of a Federate Repub¬ 
lic is it? 510. 

Prove this? 510. 

What kind of a democracy is that 
of the U. States? 511. 

Prove this? 511. 

What is the foundation of the 
government? 512. 

What is the Sanction of the gov¬ 
ernment? 513. 

Prove this? 513. 

What is the principle of the gov¬ 
ernment? 514. 

Illustrate this? 514. 

From whom does the Constitution 
of the U. States proceed? 515. 

Prove this? 515. 

Upon whom does the Constitution 
of the U. States act? 516. 

How is this? 516. 

Do the Constitutions of the states 
act upon the government of 
U. States, or, upon each other? 
517. 

How does this appear? 517. 

Is the government of the U. States 
a league? 518. 

How does this appear from the 
Intention of those, who formed 

it? 318. 


How does it appear in the fact? 
518. 

In what respect is the government 
of the U. States sovereign? 

520. 

Show this? 520. 

In what respects are the govern¬ 
ments of the states sovereign? 

521. 

In what respects is the government 
of the U. States superior to 
those of the states? 522. 

Show this? 522. 

Do the people of the U. States 
make more than one nation? 
525. 

On what reason is this idea found¬ 
ed? 525. 

Is the government of the U. States 
a go vern m en t of m aj orities ? 528. 

Shew this? 529, 530. 

Is the government of the U. S. in 
itself, perpetual? 531. 

Do the states constitute the peo¬ 
ple, in their sovereign capaci¬ 
ty? 532. 

How is this shown? 532. 

Can a state secede, constitution¬ 
ally? 533. 

What are the principal proposi¬ 
tions, we have just recited? 
535. 

In what manner was the Consti¬ 
tution put in operation? 537, 
538. 

On what day did the Constitution 
go into operation? 539. 

What are the general duties at¬ 
tached to the office of Presi¬ 
dent? 542. 

Could these duties be perform¬ 
ed, before Congress had acted ? 
543. 

When was the department of 
stale created? 545. 

What is the dutv of the Secreta¬ 
ry? 545. 


334 


APPENDIX. 


Into what classes may these du¬ 
ties be divided ? 546. 

Wiiai is foreign intercourse ? 546. 
Who is a public minister? 547. 
What is the highest class of min¬ 
isters? 548. 

What is the next? 549. 

What is the third order? 550. 
Who is a Secretary of Legation? 
55;2. 

Who are Consuls 1 553. 

What are their duties? 55.3. 
What duties do the laws of the 
U. States prescribe to Ameri- 
caivconsuls? 554, 555, 556, 
557, 558. 

Have the United States many 
consular agents? 559. 

What are credentials? 560. 
What are instmctions? 561. 
What privileges are public min¬ 
isters allowed? 562, 563, 564. 
What is to be done if an ambas¬ 
sador abuses his privileges? 

564. 

Is a consul entitled to these priv¬ 
ileges? 565. 

Who receives and examines cre¬ 
dentials? 566. 

Who makes out passports? 567. 
Where are the originals of trea¬ 
ties and laws deposited ? 568. 
Are laws and resolutions publish¬ 
ed? 569. 

How are commissioners authen¬ 
ticated? 571. 

Who controls the Patent Office? 
572. 

What is required to obtain a 
patent? 573, 

What is the punishment where 
patents are violated? 574, 

Can an inventor assign his right? 

575. 

How are copy-rights secured? 

576. 


How long is a copy-right taken 
out for? 577. 

What is the penalty for infringing 
a copy-right? 579. 

What is the object of the Treas¬ 
ury Department? 581. 

What are the duties of the Sec¬ 
retary of the Treasury? 581. 

How are these duties divided? 

582. 

What does the Secretary do? 

583. 

The First Comptroller? 584. 

The Second Comptroller? 585, 

The First Auditor? 586. 

The Second Auditor? 587. 

Third Auditor? 588. 

Fourth Auditor? 589. 

Fifth Auditor? 590. 

What is the duty of the Treasu¬ 
rer? 501. 

What is the duty of the Regis¬ 
ter? 592. 

What is the duty of tl>e Solici¬ 
tor? 593. 

How are grants of lauds made? 
594. 

In what department is land busi¬ 
ness conducted ? 594. 

Who is at the head of that 
department? 594. 

What is his duty? 594. 

How are lands granted for mili¬ 
tary services? 595. 

How were lands surveyed and 
sold prior to 1776? 597. 

By what officer is the survey of 
public lands conducted ? 598. 

What is the duty of the Surveyor 
General? 600. 

In what mode does he survey the 
public land? describe it; 601. 

How have the United States dis¬ 
posed of public lands by gift? 
602. 


APPENDIX. 


335 


What were the donations made 
to the Slate of Ohio'? 603, 604. 

How are the public lands sold? 
605. 

What is the title of the purchas¬ 
ers? 606. 

When was the War Department 
established? 608. 

What does the Secretary of War 
do? 608. 

How is his department divided? 
608, 

What is the duty of the Indian 
Bureau? 61:2. 

What is the practical operation 
of the government on the In¬ 
dians? 614. 

How is trade and intercourse with 
them regulated? 615. 

Is a citizen allowed to purchase 
land of an Indian? 616. 

What court has jurisdiction of 
such matters? 617. 

May the military apprehend per- 

■ sons found in the Indian coun¬ 
try? 618, 

How is trade carried on with the 
Indians'^ 619. 

Who makes purchases of the 
Indians? 620, 

Are licenses given to foreigners? 
621. 

What means arc taken to civilize 
the Indians? 622, 623, 624, 

What is done in the Adjutant 
General’s office ? 628. 

What in the Quarter-master Gen¬ 
eral’s? 632. 

What is the business of the Sur¬ 
geon General? 636. 

When was the Navy Department 
created? 637. 

What is the duty of the Navy 
Commissioners? 638. 

Under what officer is the Post 
office Department placed ? 640. 


What are his duties? 640. 

Does he enter into any obligation 
to perform his duties? 641. 

Can private persons carry a mail? 
642. 

Plow are the expenses of the Post 
office Department paid? 643. 

How is the business of the-office 
divided? 645, 646, 647. 

What is the business of the sec¬ 
ond division? 652. 

What is done in the third divi¬ 
sion ? 056. 

When was the Mint established? 
657. 

Who are the officers of the Mint? 
657. 

What is the duty of the Director'^ 

The Assayer? 657. 

Engraver? 657. 

Melter and refiner? 657. 

Do the officers take an oath to 
perform their duties? 658. 

Can all persons bring gold to be 
coined? 659. 

Suppose it is not of the right 
standard ? 659. 

Legislature. In what does the 
operation of the Legislature 
consist? 660. 

What three things does the le¬ 
gislative organization regard? 
660. 

What are the officers of a legis¬ 
lative body? 661. 

What are the powers and duties 
of the speaker? 662. 

What is the duty of the clerk? 
663. 

What is the duty of the Sergeant- 
at-Arms? 664. 

How is the business of a legisla¬ 
tive body done ? 666. 

How is it arranged? 667. 

What are the principal commit¬ 
tees? 668. 


r 


APPENDIX. . 


336 

What are these committees call¬ 
ed, and what is their object? 

669. 

Where is business concocted? 

670. 

What is the order of business? 

671. 

How is action to be obtained on 
a subject? 672. 

What is the order of business? 
673. 

What must be done before a bill 
can be carried through the 
house? 674. 

What is done on the different 
readings of the bill ? 675. 

When a bill passes, what must the 
clerk do? 676. 

What are the rules and directions 
to be observed, in discussion? 
677. 

Where there is opposition, how is 
tire vote taken? 678. 

Are these rules useful? 679. 

Are the rules for the Senate the 
same? 680. 

What is done after the bill is 
passed? 681. 

What is the last act oilegislation? 
682. 

In whom is the Judicial power 
vested ? 683. 

Who has power to make laws ne¬ 
cessary to p-ut it in operation'^ 
683. 

Has Congress‘done it? 683. 
What courts have been establish¬ 
ed? 684. 

What is the object of a court of 
justice? 686. 

What are the means of the court 
to do litis ? 688. 


Of whom do the officers of Uie U. 
S. Courts consist? 689. 

Who is the Marshall: 690. r 

What is his duty ? 691. ; 

Who are Attorneys at Law? 
692. 

Who is the Reporter? 693. 

What is Process? 694. 

How many kinds are there? 695. ? 

^Vhat Mesne process? 695. f 

What is a final process?' 695. 

What is a writ? 696. 

Of whom shall writs bear teste? 
697. 

What objects have the judgments 
of a court? 700. 

What are contempts? 

In what way may judgment to 
obtain a debt, 'be enforced? 
702. 

How is the business of stale legis¬ 
latures conducted? 705, 706, 
707. 

Who is the ministerial officer of 
a state court? 709. 

Who js a sheriff? 709. 

What is his duty ? 710. 

Who is the Coronor, and what is 
his duty ? 712. 

What special judicial officer have 
the states? 713. 

What is the jurisdiction of a Jus¬ 
tice of the Peace, in Ohio? 
714. 

What in criminal cases? 715.^ 

Who is the ministerial officer of 
a Justices’Court? 716. 

Have they any jurisdiction in re¬ 
spect to real estate? 717. 

Are there any other Municipal 
Courts719. 

What is the duty of the Govern¬ 
or? 720. 



















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